Mabiaku Onotaire & Ors V. Binitie Onokpasa & Anor (1984)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C. 

In the High Court of Bendel State the respondents herein as plaintiffs brought an action against 1st-6th appellants (defendants in the Court of 1st instance) claiming in these terms:

“As against all defendants –

1. A declaration of title to all that piece or parcel of land known as Ogude land lying and situate in Ikuewhu village and its neighbourhood in Agbarho clan Eastern Urhobo Division within the Ughelli Judicial Division in respect of which this Honourable Court continues to exercise jurisdiction. The exact area and situation of the said piece or parcel of land will be more particularly described and shown on the survey plan to be filed in support of this action. Annual value of the said piece or parcel of land is N40.
2. The sum of N1,000 (One thousand naira) being general damages for trespass committed by the defendants a year ago in respect of a portion of Ogude land in possession of the plaintiffs.
3. Perpetual injunction restraining the defendants, their servants, privies and/or agents from trespassing and/or further trespassing on plaintiffs’ said piece or parcel of land.

As against 1st-4th defendants only A declaration that the defendants by setting up title adverse to the plaintiffs’ title in relation to the said Ogude piece or parcel of land they (defendants) have forfeited under customary law or native law and custom their rights of user with respect to that portion of Ogude piece of parcel of land granted and/or allowed to them by the plaintiffs”

By order of court made in April, 1976, the 7th-9th defendants (7th-9th appellants herein) were made parties to the suit. The 7th defendant/appellant Chief Oghuvwu Obodo joined for himself and on behalf of Eridi family of Ovwerhe village, Agbarho, Ughelli Local Government: 8th defendant/appellant, Chief Arubi Omamohwe, joined for himself and on behalf of Okparigun family of Ehwerhe village, Agbarho, Ughelli Local Government area, while the 9th defendant/appellant, Chief Agbamukoro Ayandju (substituted on 5/7/77 for Chief Okparumo Ayandju deceased), joined on behalf of Okparegbe Community of Agbarho, Ughelli Local Government area. Pleadings were ordered, filed, and delivered. It is pertinent at this stage to mention that the plaintiffs, that is respondents herein, filed a plan of the land in dispute as between them and 1st-6th defendants/appellants. The plan No. ER.1491 was admitted in evidence as exhibit A. The 7th-9th defendants/appellants filed a plan of the land which they claim was in dispute. The plan No. MWC/1186/77 was admitted in these proceedings as exhibit C. After a protracted trial, Oki J. gave judgment on 25th January, 1980 dismissing the plaintiffs/respondents’ claim in their entirety. In view of the issues which have been canvassed in this Court it may be useful to recall the conclusion the learned trial judge reached on the various heads of claim. On the main claim for declaration of title he concluded as follows:

“Finally, on acts of ownership, exhibit B (i.e. the terms of settlement) clearly recognises plaintiffs’ family as at least, part-owners who have previously exercised acts of ownership; and I have said exhibit. B binds the 7th-9th defendants. But even in exhibit B, it would appear that the ownership of the plaintiffs’ family is not absolute in that the ownership is linked with the rest of Ikuewhu which, as has been seen, was founded by Ogude and his two brothers and Ekere. However, from my review above of facts of ownership as given in evidence, it is clear that the plaintiffs have not shown that such acts on their part have been numerous and positive enough to warrant the inference that they are exclusive owners of the land in dispute. With regard to the claim of declaration of title, therefore, plaintiffs have also not succeeded on this second principle. The 3rd principle for establishing ownership (i.e, possession of land adjacent to the one in dispute), does not, in my view, apply to the facts of this case. But apart from failing to establish by evidence either of the principles on the basis of which title may be deemed, plaintiffs, in my view, have also not established clear boundaries of the land they are claiming. In their evidence describing their land, they mentioned various boundaries which are not shown on their survey plan on the ground that those areas were not in dispute. But the defendants’ survey plan (exhibit C) clearly puts all those areas in dispute. But even by plaintiffs’ survey plan alone (exhibit A) which shows an area of 37.88 acres as being in dispute, the plaintiffs still failed to prove the boundaries shown therein.

None of the owners of the features by those boundaries was called to testify to prove the boundaries. It is settled that declaration of title cannot be granted in respect of land whose boundaries are not defined Vide Okosun Epi v. Johnny Aigbedion (1972) 10 S.C. 53. On the whole, therefore, the claim for declaration of title (which, under the present Land Use Decree could be a declaration of customary right of occupancy) fails. It follows as a corollary that the claim for injunction which depends on title to land the boundaries of which (sic) not been established, must also fail”

Having refused the claim for trespass on the ground that there was no evidence before him that the 1st-4th defendants/appellants went beyond the area granted to Obukohwo, he then dealt with the claim against 1st-4th defendants/appellants for forfeiture. On this he concluded:

“Much as I have already accepted that radical title to the area granted to Obukohwo lay in the Ogude family, the posltlon today would seem to be different.

Section 1 of the Land Use Decree 1978 now vests title to all land in Bendel State in the Governor. In the circumstances, although I find that those defendants have been blameworthy in their conduct of denying throughout this case that they derived possession from the plaintiffs, no useful purpose will now be served by making an order of forfeiture against them”.

The plaintiffs appealed to the Court of Appeal which in a unanimous judgment dated 25th November, 1982 (Ete, Agbaje and Okagbue, JJ.CA) allowed their appeal although the order on title was varied. More specifically Agbaje, J.CA who wrote the lead judgment decided as follows:

”The judgment of the learned trial judge, dismissing the plaintiffs’ claims for a declaration of title to the land in dispute and forfeiture of the interest of the 1st- 4th defendants in the land is hereby set aside. In its place I hereby declare that the plaintiffs are entitled to a right of customary occupancy of the land in dispute against all the defendants in the case. The claim for forfeiture against the 1st-4th defendants by the plaintiffs is hereby granted. The 5th-9th defendants are hereby restrained by me from coming on the land in dispute”.

As the plaintiffs did not appeal against the learned trial judge’s decision on trespass and injunction the Court of Appeal did not disturb it.

It follows that the issues on which the Court of Appeal concentrated its attention were declaration of title against all the defendants and forfeiture against the 1st-4th defendants/appellants.

Although I shall return to the leading judgment of Agbaje, J.C.A. later in this judgment, it is pertinent even at this stage to state that the Court of Appeal did not upset the findings of fact made by the learned trial judge. Its decision was rather based on those findings.

The defendants then appealed to this Court. Originally 5 grounds of appeal were filed. By the first order of this Court on 7th May 1984, grounds 1, 2, 3, and 5 of the original grounds of appeal were struck out as being grounds raising issues of fact and mixed law and fact in respect of which leave to appeal ought to have been obtained from this Court or from the Court of Appeal. By a second order of this Court on the same 7th May 1984 the application of the appellants herein for extension of time within which to apply for leave to appeal, and enlargement of time within which to appeal was granted. Pursuant to this, the appellant filed a new notice of appeal dated 8.5.84 containing 4 grounds of appeal.

When the appeal came up for hearing on 17th September, 1984 learned Senior Advocate appearing for the respondents, Chief Williams, took objection to some matters which he contended had been raised in the appellants’ brief but which had not been taken in the Court of Appeal. He referred to the practice of this Court of not taking points of law or fact not canvassed in the lower court unless of course the party seeking to raise such matters had sought leave of this

Court. Chief Williams referred to paragraph 2(2) of the respondents’ brief in which the new matters were listed. He specifically mentioned the point that when the High Court dismissed the claim of the respondents it was not on the ground that the land claimed by Ogude family was not owned by it to the exclusion of the Ikuewhu community.

No such contention was made before the Court of Appeal. The next point was that although the Court of Appeal found that 1st-4th defendants/appellants derived their possession from the respondents, ground 4(a) filed by the appellants, asserted that –

”there is no evidence that the plaintiffs/respondents put the 1st-4th defendants/appellants on the land as pleaded in paragraphs 25 and 26 of the amended statement of claim”.

He finally submitted that where a respondent before the Court of Appeal is not allowed to raise a point on the ground that he did not cross-appeal or on the ground that he did not serve a notice of his intention to raise the point he cannot come to the Supreme Court and raise the issue as of right. Chief Williams relied on United Marketing Company vs Kara 1963 Vol. 1 W.L.R. 523, 524 P.C; Ahamath vs Umma (1931) A.C. 799, 802-803 P.C; Singh vs Singh Vol. 34 Law Reports Indian Appeals 164 at 166.

In his reply, Learned Senior Advocate appearing for the appellants, Mr. Lardner, contended that having regard to the pleadings in the case and the grounds of appeal filed by the respondents in their appeal to the Court of Appeal, none of the grounds of appeal now filed by him ran against the principles referred to by Chief Williams. The issue of exclusive ownership by the respondents raised by ground was not a new matter. In respect of ground 3, he said he was only complaining about the action of the Court of Appeal in shutting out the appellants. He was not attacking the merits of the findings of that court. In his view if evidence was statutorily inadmissible the party was entitled, and indeed had a duty, to draw the court’s attention to it.

It is now settled law and practice of this Court that if a proper application is made to argue a point not taken in the Court of Appeal, this Court will allow such a point to be argued if it is a point of substantive or procedural law which needs to be allowed to avoid a miscarriage of justice. See K. Akpene and Barclays Bank of Nigeria Ltd. and Anor (1977) 1 S.C. 47; Etowa Enang and Ors. v Fidelis Ikor Adu (1981) 11-12 S.C. 25 at 45. There was no application for any new matter not taken before the Court of Appeal to be taken in this Court. However, after due consideration of the submissions of learned counsel on this preliminary issue we were not satisfied that all the grounds of appeal raise new matters not canvassed before the Court of Appeal. Accordingly, grounds 1, 2, 3, 4(b) and (c) were accepted as good arguable grounds of appeal while ground 4(c) was struck out.

Still dealing with preliminary matters, I do not propose to set down the pleadings of the parties nor do I wish to set down the 4 grounds of appeal. I shall refer to them in the course of this judgment.

Learned Senior Advocates appearing for both parties filed briefs of argument which they developed in their oral argument. In his brief of argument, learned Senior Advocate, Mr. Lardner, for the appellants, identified main and subsidiary issues. The main issue is:

“Have the respondents as plaintiffs in this land case involving trespass, injunction and forfeiture established absolute title to the land in dispute”

On the subsidiary issue the appellants asked if “the Federal Court of Appeal was right in setting aside the decision and/or judgment of the High Court Ughelli dismissing the plaintiffs/respondents’ claim for a declaration of title to the land in dispute, forfeiture of the interest of the 1st-4th defendants/appellants (sic) injunction restraining the 5th-9th defendants/appellants from coming on the land in dispute and in its place declaring that the plaintiffs/respondents are entitled to a right of customary occupancy to the land in dispute against all the defendants/appellants in the case, granting claim for forfeiture against the 1st-4th defendants/appellants in favour of the plaintiffs/respondents and injunction restraining the 5th-9th defendants/appellants from coming on the land in dispute” The submissions of Mr. Lardner can be broadly grouped under 3 headings:

(a) His contention that the respondents did not prove the boundaries of the land in dispute and so were not entitled to a declaration of title

(b) Use of Exh. B – the proposed terms of settlement between the parties, Exh.G the grant of portions of land to European traders in 1931, grant of land to Chief Edmund Agbowo for his bakery in aid of the contention that the respondents did not have acts of possession and ownership positive and long enough to lead to the inference that they were exclusive owners and that the Court of Appeal was wrong to have so held

(c) The contention that the grant to Obukhowo by the respondents was an outright gift and that no conditions were attached to the grant and as 1st-4th defendants/appellants were not in breach of the grant to Obukhowo no forfeiture against them ought to have been ordered.

In respect of (a) above, Mr. Lardner submitted that the plaintiffs/respondents did not prove the boundaries of the land claimed. A plaintiff he said in addition to producing a plan of the land in dispute had to prove the boundaries of the land encompassed in that plan. He argued that the failure of the plaintiffs/respondents to show OKAN village which they claimed as part of their land in their plan exhibit A showed that that exhibit was unreliable. The respondents he said had failed to prove their northern and eastern boundaries. He thought they should have called witnesses from communities having boundaries with them.

On (b) he submitted that when the finding that it was the respondents who granted land to Obukhowo was put against other facts one could not draw the inference that the respondents were exclusive owners. These other facts he contended included the fact that although the respondents pleaded that members of their community planted rubber trees on the land in dispute no evidence was called at the trial to support this. There was also no evidence as to the area verged yellow in exhibit A allegedly granted to 1st-4th appellants by respondents. In effect he argued that no acts of possession by respondents were shown on their plan exhibit A. For this part of his submission he relied heavily on exhibit B to which reference had been made earlier as well as on Exh. G a conveyance by the Okparegbe Community (made up of 5 villages – Ikuewhu, Ehwerhe, Uwhrughale, Ophori and Ekrerannwem) contending that although the respondents amended their statement of claim to say that they authorised the grant, no evidence was led at the trial to support this.

On (c) Mr. Lardner submitted that both plaintiff and Madam Akposodje, Obukhowo’s concubine, said in evidence that no conditions were attached to the grant to Obukhowo. He contended that the evidence was at variance with the pleadings of the respondents. He submitted that no customary tenancy was proved and that 1st-4th defendants’ alleged misbehaviour was really their resistance to the entry by respondents into the area verged green granted to Obukhowo. He thought that if the Court of Appeal had averted its mind to these facts it would not have granted forfeiture against 1st-4th appellants.

In his reply Chief Williams dealt with all the issues raised convincingly. As regards the issue of boundary he contended that the respondents proved the boundaries of the land in dispute i.e. the land shown in exhibit A. It was the 1st-6th defendants/appellants that the respondents sued for declaration of title etc. Between 1st-6th defendants/appellants and respondents there was no dispute as to the identity of the land in dispute. The respondents had no dispute with 7th-9th defendants/appellants who joined the suit and put the lands in dispute and all the land around it in issue. He claimed that it was 7th-9th defendants/appellants who introduced confusion into the suit since the plan they tendered, exhibit C, encompassed a larger area of land which respondents were not claiming and 7th- 9th defendants/appellants made no effort to relate exhibit C to exhibit A. The 7th-9th defendants/appellants he submitted waded in after issues had been joined between 1st-6th defendants/appellants and respondents. The evidence on record, he said, was ample as far as the boundaries of the land claimed by respondents was concerned. The respondents he concluded surveyed not their whole land but only the portion in dispute between them and 1st-6th defendants/appellants.

On the issue of acts of ownership and possession Chief Williams contended that the most important finding by both courts was in respect of the grant of land by respondents to Obukhowo and thence to 1st-4th defendants/appellants. Following this finding the acts of possession on the land in dispute by Obukhowo and 1st-4th defendants were on the sufferance of the respondents. He did not think there was any need to prove further acts of possession or ownership on the land in dispute by respondents.

On forfeiture Chief Williams submitted that the concurrent finding of both the court of trial and the Court of Appeal was that 1st-4th defendants/appellants were customary tenants put on the land by respondents. He submitted that the learned trial judge clearly found that 1st-4th defendants/appellants misbehaved and only declined to order forfeiture because he erroneously thought the Land Use Decree 1978 had so altered the situation to make such an order of no value. He pointed out that there was in any case no claim by 1st-4th defendants/appellants of relief from forfeiture.

In dealing with the contentions of the parties in this appeal, I would wish to adopt the format used by the learned trial judge, i.e. dealing with the issues one after the other. This seems to have been adopted by the Court of Appeal and by the learned Senior Advocates appearing for the parties.

In determining whether the respondents had made out a case entitling them to their claims the learned trial judge considered the evidence and the issues under the following headings:

(a) acceptable traditional evidence; or

(b) evidence of acts of ownership which are numerous enough and extend over a sufficient length of time; or

(c) proof of possession of connected or adjacent land to the land in dispute.

He mentioned that the respondents will succeed in their claim for declaration of title on any of these three headings provided they are also able to establish clearly the boundaries of the land they are claiming.

On the question of boundaries it is trite law that plaintiff in an action for declaration of title cannot succeed unless he can prove clearly the boundaries of the land he claims. The burden of proof is clearly on such a plaintiff. See Ezeokeke and Ors. v. Ueja and Ors. (1962) 1 All N.L.R. 482; Amata v Modukwe (1954) 14 W.A.C.A. 580. Udofia v. Afia (1940) 6 W.A.C.A. 216; Okosun Epi v Johnny Aighedion (1972) 10 S.C. 53. In the instant appeal it is essential to advert one’s mind to the land being claimed by the plaintiffs/respondents before determining whether they actually proved its boundaries. In paragraph 22 of the amended statement of claim the plaintiffs/respondents pleaded as follows:

“(22) The land in dispute and the features thereon as well as the boundaries thereof are as shown on survey plan No.E.R. 1491 filed in support of this action SAVE and EXCEPT that the words on the said plan relating to Chief Edmund Agbowu should read “LAND GRANTED TO CHIEF EDMUND AGBOWU BY COMMUNITY” the said plan having been prepared by Chief E.C.O. Orinyanremu, licensed surveyor”

This plan as indicated earlier was tendered in evidence as exhibit A. The respondents clearly gave evidence in respect of the boundaries of this land. In this regard the evidence of the 1st plaintiff/respondent is pertinent. He said:

“We employed a surveyor to survey the land in dispute in this (sic). His name is Eriyamremu. He testified as our first witness. We took him to the land. We showed him the features of the land and the boundaries. After we showed him all the features he prepared a plan for us. This is the plan he prepared for us (exhibit A identified). Okan belongs to Ogude family. Anyone standing on the road traversing the land in dispute between Ikuewhu and Orho – Agbarho and facing Orho- Agbarho direction would find that a river forms the boundary of our land on the right hand side. The land on the other side of the river belongs to Okpe people. Standing still at that point we have boundary in front with Orho Agbarho in the area which I have been referring to as 2 miles square. On the left is our boundary with Orhokpor. A swamp forms that boundary. But that side is not in dispute. Otherwise I would have brought a witness to testify as to that boundary. The swamp is known and called Echogba. Still standing on the road, the land in dispute facing Orho-Agbarho Ikuewhu would be behind me. Ewherhe would be behind me, but it is not shown on the plan because the plan is only concerned with the area in dispute” (Italics mine)

One of the grounds on which the respondents’ evidence on the boundaries was attacked was that though they claimed that their ancestor founded Okan village, that village is not shown in exhibit A either. The short answer to that is that the plan exhibit A was concerned with the land in dispute and was not intended to encompass all the land of the respondents as founded by their ancestor OGUDE. I do agree with Chief Williams that the confusion was introduced by 7th-9th defendants/appellants who tendered plan exhibit C. I would reiterate that exhibit A contained the land in dispute between respondents and 1st-6th defendants/appellants. Exhibit C on the other hand contained other lands surrounding the land in dispute which 7th-9th defendants claimed were in dispute between them and respondents. No attempt was made by them to relate exhibit C to exhibit A. There is no doubt that the decision of the learned trial judge on boundaries was largely influenced by exhibit C. This is amply shown in his finding on this point. He said:

“In their evidence describing their land, they mentioned various boundaries which are not shown on their survey plan, on the ground that those areas were not in dispute. But the defendants’ survey plan (exhibit C) clearly puts all those areas in dispute”.

I am in agreement with the conclusion of the Court of Appeal:

”that there was before the learned trial judge evidence of the boundaries of the land to which the plaintiffs’ claims relate and furthermore the land to which the claims relate clearly defined by the plan Exh. A”. As regards acceptable traditional evidence and evidence of acts of ownership and possession numerous and extending over a long period to lead to the inference that plaintiffs are exclusive owners, it is established that where traditional evidence is conflicting or inconclusive the court can rely on acts of possession in recent times. The onus will of course lie on plaintiffs to establish that such acts are numerous and extend over a long period to show them as exclusive owners. See Kojo II v. Bonsie (1957) 1 W.L.R.1223; Ekpo v. Ita XI N.L.A. 68; F.M. Alade v. Lawrence Awo (1975) 4 S.C. 215. Examining the traditional evidence closely, I do not think that it was inconclusive. It seems that the learned trial judge was swayed in his conclusion by his findings on the founding of Okar Orphan and Okan village. After reviewing both parties’ versions of the history he concluded as follows:

“I have already set out defendants’ version of how Okan came to be founded by Eridi and finally handed over to the Okparegbe community. I am afraid, I have not been able to see why I should prefer one story to the other. From the totality of the evidence including acts of ownership which I shall later deal with, it would appear that both the descendants of Ogude and the descendants of Eridi made their presence felt on one part or the other of what now constitutes OKAN. But it is for a plaintiff to establish his claim. I am not satisfied with the traditional evidence that OKAN, marked as OGUDE FAMILY LAND and labeled as being in dispute in exhibit A and roughly coinciding with area marked OKAN LAND in 7th-9th defendants’ plan exhibit C, was founded by OGUDE”.

But it seems to me that the two most fundamental findings of the learned trial judge were first that it was the respondents who put Obukhowo and therefore 1st-4th defendants/appellants, on the land in dispute and, second, that OGUDE, the ancestor of the respondents, was a living person and not the name of a bush as hotly contended by the 7th-9th defendants/appellants. Indeed, I think these two findings go to the root of the whole suit and were sufficient to determine most of the issues between the parties in respondents’ favour. I do agree with the Court of Appeal that they were sufficient to put a stamp of acceptability on the respondents’ traditional history as well as if still necessary, the conditions that must be reached as regards acts of ownership and possession.

Perhaps a brief reference to the parties’ pleadings will show the justification for the importance I have attached to these two findings. On the grant to Obukhowo the respondents in paragraph 23 of their amended statement of claim pleaded as follows:

“23 About forty years ago one Obukowho Onotaire, 1st-4th defendants’ eldest brother approached the plaintiffs’ family through his concubine, Madam Akposodje of plaintiffs’ family for the grant of plantiffs land on which he and his said concubine could build and settle. Thereupon the plaintiffs’ family granted to the 1st-4th defendants’ eldest brother aforesaid the portion of the land verged green on survey plan No. E.R.1491. Because of his relationship with Madam Akposodje, the grant was made rent free but the usual conditions attaching to customary tenancy were imposed and the consequence of misbehaviour and/or denial of plaintiffs’ title were explained and finally understood

(27) The 1st-4th defendants behaved themselves on the portions of land granted to them as aforesaid and did nothing to deny plaintiffs’ title thereto until the year 1973 when they apparently felt themselves strong enough to challenge and actually challenged the plaintiffs’ title not only to the portions granted to them but also to the entire area of land in dispute 35 in their case by-

(i) Entering without the plaintiffs’ consent and permission other portions of the said land in plaintiffs’ possession

(ii) Entering without the plaintiffs’ authority and consent, the said other portions of the land and purporting to alienate same in favour of the 5th and 6th defendants who also entered the said other portions of land without plaintiffs’ consent first sought and obtained

(iii) Openly denying and challenging the plaintiffs’ title to the land in dispute “(Italics mine)

To this particular paragraph (23) the 1st-6th and 7th- 9th defendants/appellants replied as follows:

“1st-4th Defendants/Appellants

(13) In answer to paragraphs 23, 24, 25 of the statement of claim each of the 1st- 4th defendants avers that the piece and parcel of land on which Obukhowo lived, died and was buried and on which he planted rubber trees was granted to their mother Madam Umutor Ekpapro by Ojovho/descendants of Ehwerhe aforesaid long before the said Obukhowo was born as already stated in paragraph 10 of this statement of defence above. The land at Okan village and its environs was originally founded by Eridi whose descendants made grants of land to people at Okan and Ikuewhu villages and Okparegbe community as shown in survey plan No. MCW/1186/77″ and 7th-9th Defendants/Appellants

(14) In further answer to paragraphs 23, 24, 25, 26, 27, the 7th defendant says that the piece and parcels of land occupied by the 2nd, 3rd and the 4th defendants were granted to them by Eridi family who originally owned the land”.

On OGUDE, the 7th-9th defendants/appellants pleaded as follows:

“(4) As regards paragraphs 3, 4, 7, 10 of the statement of claim the co-defendants deny emphatically the plaintiffs’ claim that ‘OGUDE’ was the name of one of their ancestors and will at the trial put the plaintiffs to the strictest proof thereof. The defendants aver that ‘OGUDE’ is the name of a juju shrine after which the bush and or land surrounding it is, named – ‘Ogude bush’ in Ehwerhe”.

It seems to me that if the learned trial judge found as he did that Ogude was one of the sons of Erawe and was indeed the ancestor of the respondents, and further that 40 years from the date of the suit the respondents put Obukhowo and his brothers on the land in dispute and they exercised various acts of possession at the sufferance of the respondents, he should not have found it difficult to grant them title. Of course I am not unmindful of the contention forcefully put forward by Mr. Lardner that when exhibit B and exhibit G as well as other facts are taken together with the grant to Obukhowo one cannot arrive at the conclusion that the acts of ownership show the respondents as exclusive owners. Exhibit B is the proposed terms of settlement between the parties. I say proposed because although representatives of the parties signed it, the dispute was never settled hence this suit. Exhibit B must therefore be put in its proper perspective. It certainly cannot operate as estoppel against the parties as the learned trial judge rightly held. Its effect is that at least it contains assertions which the parties that signed the document cannot deny. Hence the learned trial judge rightly held against the 7th-9th defendants/appellants their admission of the existence of OGUDE as a person as recorded in exhibit B. In the same vein the respondents were held bound by certain portions of exhibit B. These were –

“(i) That such land area of Okan which hitherto was reserved for Okparegbe community should continue to belong to Okparegbe. For avoidance of doubt the areas referred to are the OKAN market square, the water front at the Okan bridge head, the area formerly occupied by some European traders and the area now currently occupied by Endumnu

(ii) That all other land areas occupied by Okan (built and unbuilt) including the area in dispute in Suit No.UHC/38/73 belong to OGUDE family of Ikuewhu and Ikuewhu community.

(iv)That any son or daughter of Okparegbe who wishes to acquire for development any part of the land area in Okan outside the area reserved for Okparegbe community and outside those areas granted to owners of existing compounds, should approach Ikuewhu community through OGUDE family of Ikuewhu for permission to do so as was the case in the past”.

Exhibit G contained conveyances granted to European traders in 1931 by the Okparegbe community and can be said to fall within paragraph (i) above. It is pertinent to mention that as far as Okan land dealt with in exhibit B is concerned it is not relevant here as the respondents have not put Okan land in dispute as between them and 1st-6th defendants/appellants. Only the land granted to Chief Edmund Agbowo is shown in the respondents’ plan exhibit A and it is understandable that at most they can only have radical title to that area. The area of land covered by exhibit G is not shown in exhibit A. Besides, the respondents in paragraph 2 of their amended statement of claim pleaded that portions of their land near Ikuewhu river granted to the Okparegbe community of Agbarho were further granted by the said Okparegbe community to some German traders and after their departure to Chief Agbowu trading as Edmond’s Bakery.

The learned trial judge was not impressed by this amendment and held that he had only the ipse dixit of the respondents that they made the grant to the Okpareg be community. I am also of the view that it was a serious misdirection on the part of the learned trial judge to use the fact of this late amendment of the respondents’ statement of claim against them. Therefore on the traditional evidence before the trial court as well as evidence of acts of ownership and possession I think the Court of Appeal was right in the use it made of the learned trial judge’s findings:

“In my view” said Agbaje J.CA in the lead judgment “1 am satisfied that if the learned trial judge had tested the traditional evidence before him by reference to the fact in recent years found by him namely that it was the plaintiffs and not the 7th to 9th defendants who put the 1st to 4th defendants on the land in dispute he should have preferred the traditional evidence of the plaintiffs to that for the defendants as regards the land in dispute. This is all the more so when he has specifically rejected the contentions of the defendants that Ogude whom the plaintiffs described as their ancestor was not a real person. If the learned trial judge had accepted the traditional evidence for the plaintiffs as he should have done in my judgment then the plaintiffs should have been entitled to judgment for declaration of title to the land in dispute on the strength of their traditional evidence alone without considering whether or not they have proved acts of ownership in respect of the land in dispute. See the cases of Abinabina v Enyimadu 12 WAC.A. 171, 172 and Abdullai v Manue 10 W.A.C.A. 172 at 174” and later,

“as to acts of ownership, the learned trial judge made a categorical finding namely that it was the plaintiffs who put the 1st to 4th defendants on the land in dispute. On this finding it appears to me clear that as between the plaintiffs and all defendants the plaintiffs have proved a better title to the land in dispute. So, they are entitled to succeed against them all on the issue of title to the land even on the point of acts of ownership”.

Finally, on the issue of forfeiture there are two preliminary matters I would wish to touch upon. First is that there was no claim by the 1st-4th appellants for relief from forfeiture. Of course there would not have been any as it was never their case that they were granted any land by the respondents. It was also contended by the appellants that a customary tenancy was never proved. Again with all respect this was never an issue between the parties. The respondents pleaded in paragraph 23 of their amended statement of claim referred to above that they granted Obukhowo a customary tenancy. Although the 1st-4th appellants denied paragraph 23 it was never in relation to the nature of the grant Obukhowo received.

They denied a grant from the respondents. The evidence on this was one sided and it could have indicated nothing else but a customary tenancy. No conveyances were alleged or proved. On the contrary, apart from the averments in paragraph 23 of the amended statement of claim Madam Akposodje testified that she and Obukhowo gave food and drinks to her family and the land was given to them.

As to the incidents of customary tenancy see “Nigerian Land Law” by Nwabueze pp.246-269.

It was found by the learned trial judge that there was no evidence of the conditions of the grant made by the respondents to Obukhowo and so there could be no question of the 1st-4th appellants committing a breach of them. It has to be pointed out that a party does not need to prove any assertion which is admitted or which is not denied. In their pleadings the respondents assert that the conditions of the grant to Obukhowo were explained to him. The 1st-4th appellants did not deny this. Again their reactions were a total denial of any grant at all to Obukhowo.

In any case it can be safely implied as a condition of a grant of land in customary law that the grantee cannot challenge the title of the overlord. It must be on that ground that the learned trial judge found serious misconduct against the 1st-4th appellants. His finding was that:

” although I find that those defendants have been blameworthy in their conduct of denying throughout this case that they derived possession from the plaintiffs, no useful purpose will now be served by making an order of forfeiture against them”

I think that with this denial of the respondents’ title forfeiture was automatic against 1st-4th appellants once the learned trial judge found the origin of their grant, see Oghalli Akpagbue and Anar v Nduaku Ogu and Ors (1976) 6 S.C. 63 at 74 to 75.

In their writ of summons the respondents had claimed against the 1st-4th appellants as follows:

“A declaration that the defendants by setting up title adverse to the plaintiffs’ title in relating (sic) to the said Ogude piece or parcel of land they (defendants) have forfeited under customary law or native law and custom their rights of user with respect to that portion of Ogude piece or parcel of land granted and/or allowed to them by the plaintiffs”.

Indeed the learned trial judge would have granted the order of forfeiture if he had not erroneously concluded that the Land Use Act has made such a grant of no purpose as title now vested in the Governor of the State. Section 40 of the Land Use Act 1978 provides as follows:

“40. Where on the commencement of this Decree proceedings had been commenced or were pending in any court or tribunal (whether at first instance or on appeal) in respect of any question concerning or pertaining to title to any land and or interest therein such proceedings may be continued and be finally disposed of by the court concerned but any order or decision of the court shall only be as respects the entitlement of either of the parties to the proceedings to a right of occupancy, whether statutory or customary in respect of such land as provided in this Decree”.

The action herein was commenced in 1978, so that the proceedings were pending before the Land Use Decree came into effect on 29th March, 1978. The provisions do apply here and would have enabled the learned trial judge make the order he clearly intended making.

The final matter I would wish to deal with albeit briefly is whether an order of declaration of title ought to be made against 7th-9th appellants. Although it was the case of the respondents that they had no dispute with 7th-9th appellants and never sued them, I am firmly of the view that whatever order of declaration I make ought to include 7th-9th appellants. This would necessarily be limited to the land contained in exhibit A which as stated in paragraph 22 of the amended statement of claim is the land the respondents say is in dispute. I have arrived at this conclusion because of the manner in which the 7th-9th appellants have conducted their defence since of their own accord they joined this suit as defendants. They denied the existence of OGUDE the ancestor of the respondents; they denied that it was the respondents who granted land to Obukohwo and thence to 1st- 4th appellants and claim that it was ERIDI family that did so. In fact they set their title against that of the respondents even in relation to the land the respondents claim as being in dispute. For instance in paragraph 11 of their statement of defence 7th appellant pleaded as follows:

“11. The 7th defendant avers that the land in dispute and the surrounding land and or its neighbourhood as shown on the plan. No.MWC/1186/77 of 16/8/77 prepared by M.N. Chukwurah attached hereto was founded by his family ancestor, Eridi of Ewherhe village who reigned as the first Osuvie of Agbarho”.

He traced his family tree from Eridi as follows:

“Osenvwen begat Evodi(m) Eridi begat Ojovho (rn) Okokoro (m) Eshareturi (m) Ejemu (m) Akerhonbe (f) among his other children. Akerhonbe begat Obodo (m) Obodo begat Oghuvwu, the 7th defendant”.

In paragraph 13, the 7th-9th appellants pleaded as follows:

“13. The co-defendants in further answer to paragraph 16 of the statement of claim say that Eridi granted the land occupied by Okan village and the neighbouring farms to Okparegbe community since time immemorial … The co-defendants deny emphatically, that neither the plaintiffs’ forbears nor they themselves ever made grants of any piece and parcel of land to either Okparegbe community or any individual at Okan village, before this action was filed”.

It was also argued that having regard to exhibit B a declaration could not be obtained against 7th-9th appellants since they are members of the Okparegbe community as distinct from 1st-6th appellants who are alleged to have come from Ughelli. The short answer to this is that I have already shown in this judgment that apart from the portion granted to Edmund Agbowu no other portion granted to Okparegbe community appears in exhibit A which is the plan of the land in dispute. The only remaining matter is that having regard to the admission of the respondents that it was the Okparegbe community that granted land to Chief Edmund Agbowu I do not think that they the respondents ought to be granted a right of customary occupancy against him.

In the result, and subject to what I have just said about Chief Agbowu, this appeal annot succeed and it accordingly fails. The appeal is dismissed. The judgment of the Court of Appeal dated 28th November, 1982 as well as the orders contained in the leading judgment of Agbaje, J.C.A are affirmed. The respondents are entitled to costs against the appellants and these I assess as N300.

BELLO, J.S.C.: I had a preview of the judgment delivered by my learned brother, namani J.S.C. For the reasons so ably stated by him, I would also dismiss the appeal and affirm the decision of the Court of Appeal granting to the respondents a declaration of title against all the appellants, order of forfeiture against the 1st to 4th appellants inclusive and injunction against the 5th to 9th appellants inclusive.

The respondents are entitled to N300 costs against all the appellants.

I would only add that the 7th to 9th appellants came into the case in representative capacities on their own volition when the respondents had not joined them as parties. In their pleadings, the 7th to 9th appellants denied the right of the respondents to the land in dispute and averred that the land in dispute had been founded by one Eridi of Ehwerhe village, the family ancestor of the 7th appellant, and that it belongs to that family and grantees of the family. Under the circumstances, I think, the 7th to 9th appellants are bound to accept and suffer the consequences of their own volition on the principle of votenti non fit injuria.

KAZEEM, J.S.C.: I have had the privilege of seeing the judgment just read by my learned brother, Nnamani, J.S.C. which I read in draft. It has dealt in detail with the facts as well as the submissions put before us on this matter which is mostly of facts; and I not only agree with the views expressed therein but I also adopt them as my own. However there are two points on which I wish to express some views. The first concerns the issue of forfeiture as found by the Court of Appeal against the 1st to 4th appellants and the second concerns the purpose of introducing into the case by the respondents, the document – Exh. B referred to as “Terms of Settlement”.

As regards the issue of forfeiture, the respondents on the one hand pleaded that they put Obukhowo on the land verged green in Exh. A as a customary tenant at the request of Akposodgie, his concubine, and a member of their family; that the conditions of the grant were explained to him; that he and his concubine planted rubber trees on the land and lived thereon; that in due course he brought his relations 1st to 4th appellants to live with him on the land; that after Obukhowo’s death, 1st to 4th appellants continued to live on the land; but later began to deny the respondents’ title and purported to sell the land. On the other hand, 1st to 4th appellants denied the averments and pleaded that the land in dispute was granted to them by the 7th to 9th appellants who were the owners of the land. The learned trial judge however found inter-alia:

(i) that the respondents placed Obukhowo on the land and that through him the 1st to 4th appellants came on the land; and that appellants’ story as to how they got to the said land was contradictory and unacceptable;

(ii) that whereas it was pleaded that the grant to Obukhowo was rent-free because of his relationship with Akposodgie, that the usual conditions attaching to customary tenancy were imposed and that the consequence of misbehaviour and denial of respondents’ rights were explained and understood, nevertheless, the evidence adduced by both the 1st respondent and 2nd respondents’ witness (Akposodgie) was that no conditions were attached to the grant; and there was no evidence that the grant was subject to good behaviour as pleaded.

I think that it is necessary here to point out that the above finding overlooked the evidence of the 2nd witness to the respondents (Madam Akposodgie) on the issue. She said that apart from giving drinks to the respondents before the grant to Obukhowo was made, no other condition was attached to the grant; and that Obukhowo made no attempt to sell the land during his lifetime. That testimony in my view, recognised the fact that at least two obligations of customary tenancy were observed by Obukhowo during his tenure; that is, the offering of drinks prior to the grant and non-alienation of the land during his lifetime. Moreover, it was the association of Obukhowo with Madam Akposodgie, a member of the Ogude family, that made the grant possible; and he neither claimed absolute title to it nor denied the title of the respondents to the land as the 1st to 4th appellants did. Surely that goes to prove that the grant was not an absolute one or an out and out gift as submitted by learned counsel for the appellants. Also, although the respondents pleaded and testified that the grant to Obukhowo was a customary grant, yet, the learned trial judge merely said that there was no evidence that the grant was subject to good behaviour and that no conditions were attached to it, without making any specific finding on that evidence. There was evidence that the 1st to 4th appellants who succeeded to Obukhowo’s grant challenged the respondents’ title and the learned trial judge so found. In Dokubo v Bob-Manuel (1967)1 All N.L.R. 113 at page 121, this court observed that “a denial of title of the true overlord is a ground for forfeiture in every system of jurisprudence known to us” and in any case, it is an implied condition of a grant of land under customary law, that a grantee cannot challenge the title of his over-lord. In the circumstances what other evidence of “bad” behaviour or misbehaviour did the learned trial judge expect the respondents to prove than what he himself had found from their testimonies See Onisiwo v Gbamgboye (1941) 7 W.AC.A 69; Dabiri v Gbajumo (1961) 1 All N.L.R. 225 (F.S.C.) and Asani Taiwo & ors. v Adamo Akinwunmi & ors (1975)4 S.C. 143. Oghalli Akpagbue & Anor v Nduoku Ogu & ors (1976) 6 S.C. 63 at pages 74-75. Did he not say that:

“Much as I have already accepted that radical title to the area granted to Obukhowo lay in the Ogude family, the position today would seem to be different. Section 1 of the Land Use Decree 1978 now vests title to all land in Bendel State in the Governor. So that even if forfeiture is granted, title will revert not to the plaintiffs but to the Governor. In the circumstances, although I find that those defending have been blameworthy in their conduct of denying throughout this case that they derived possession from the plaintiffs, no useful purpose will now be served by making an order of forfeiture against them.” (Italics mine)

In my view, it is implicit in the above finding that the learned trial judge had found that the 1st to 4th defendants were customary tenants who were guilty of misbehaviour by denying their landlord’s title, and that he would have ordered forfeiture against them but for his erroneous application of the Land Use Act 1978 to the matter.

On the issue of Exh. B, the respondents in paragraph 28 of their amended statement of claim pleaded as follows:

“(28) a. Plaintiffs aver that after several adjournments and interlocutory applications, this case was fixed for 20th and 21st July, 1978, for hearing.

b. Before the date fixed for the hearing of this case aforesaid, Okparegbe community to which majority of the parties to this case belong summoned a peace meeting of both the plaintiffs and defendants to settle this case out of court.

c. At the peace meeting terms of settlement were proposed and were unanimously accepted by all those who attended the meeting except 2nd to 6th and 9th defendants who were not present at the said peace meeting.

d. The terms of settlement were reduced into writing and explained to all the illiterate signatories by Chief Johnson Unumeri when all agreed that it was accurately recorded before each of them thumb impressed the document in the presence of Chief A. Nikoro, the Agbarho Clan Otota and head Chief of Okparegbe Community Peter Ogaga, the President-General of Agbarho (Urhobo) Improvement Union and several others as contained in the said document, The plaintiffs shall rely on the terms of settlement, particularly the clauses which confirmed that the area in dispute excluding the area previo Ogude family to Okparegbe Community belong to the plaintiffs’ family at the trial of this suit.”

And at the trial they adduced evidence that they agreed to execute the terms of settlement in the interest of peace and harmony among the Okparegbe Communities to which the majority of the parties belonged. But the appellants (particularly the 7th to 9th appellants) either repudiated the terms of settlement or denied participating in the settlement. However, the learned trial judge placed so much reliance on the document to the detriment of the respondents. He said inter alia thus:

“Finally, on acts of ownership, exhibit B (i.e. the terms of settlement) clearly recognised plaintiffs’ family as, at least, part owners who have previously exercised acts of ownership; and, I have said exhibit B binds the 7th to 9th defendants. But even in exhibit B, it would appear that the ownership of the plaintiffs’ family is not absolute in that the ownership is linked with the rest of Ikuewhu which, as has been seen, was founded by Ogude and his two brothers and Ekare.

The Court of Appeal did not advert to the terms of settlement – Exh. B in its judgment probably because the learned trial judge misconceived the whole purpose of that document.

I think the purposes of pleading the terms of settlement in paragraph 28 of the amended statement of claim, and tendering the document in evidence as Exh. B by the respondents were to show (a) that the whole of Okan land originally belonged to the Ogude family of Ikuewhu and the Ikuewhu Communities but portions of it were previously reserved for the Okparegbe Community and those portions so reserved were also mentioned as:

(i) Okan Market Square;

(ii) The Water front at the Okan Bridge Head;

(iii) Areas formerly occupied by European traders;

(iv)Area currently occupied by Endumus;

(b) that notwithstanding the suit brought against 1st to 6th appellants in which 7th to 9th appellants joined later, the respondents were still, in the interest of peace, prepared to abide by that arrangement; and (c) that nevertheless, the 7th & 8th appellants repudiated the document and the 9th appellant disowned it. See para 18(a) to (e) of the amended statement of defence of 7th to 9th defendants and Exh. E – letter dated 5/1/79.

The learned trial judge said that the 1st to 6th appellants were not bound by the document. That is understandable because they were never a party to it. But he also said that the repudiation of the document by 7th & 8th appellants as evidenced by Exh. E had no leqal effect. In my view, the learned trial judge seemed to have laid too much emphasis on the document – Exh. B – which the appellants who should have benefited from it repudiated it and claimed absolute ownership of the land in dispute. That repudiation, in my view, is tantamount to a rejection by the appellants of the concession made by the respondents in their favour; and if anybody could be held bound by the terms of the document, it must be the respondents who had granted the concession, but only to the extent of the area of the concession as shown in the survey plan of the land in dispute – Exh. A In my view, the document – Exh. B – does not support conclusion of the learned trial judge that it proved that the respondents were not the absolute owners of the land in dispute.

Be that as it may, it is to be noted that according to the terms of settlement, the respondents had conceded certain portions of the land in dispute to the Okpareg be; but the Court of Appeal, notwithstanding that concession, granted a declaration of a right of customary occupancy of the whole land in dispute as per the survey plan – Exh. A – against all the appellants. But out of all the four portions of land said to be reserved for the Okparegbe Community by the respondents according to Exh. B, it is only the area of land currently occupied by Edumus Agbawu otherwise known as Endumus that was shown in Exh. A as being within the land in dispute. The other three areas are not shown thereon, and it is not known whether they fall within or without the land in dispute as shown in Exh. A, particularly when it is clear from the evidence that the parcels of land belonging to the respondents extend beyond the boundaries of the land in dispute delineated in Exh. A.

In so far as the area currently occupied by Endumus is shown within the total area of land edged pink (or red) in Exh.A, and because of the concession made by the respondents in Exh. B, I am of the view that the said area should not be affected by the declaration granted in favour of the respondents by the Court of Appeal.

In the circumstances, I will dismiss the appeal, and affirm the judgment and orders made by the Court of Appeal on 25th November, 1982, with N300.00 costs to the respondents.

COKER, J.S.C.: This is defendants’ appeal against the decision of the Court of Appeal, Benin City Division, in which it reversed the decision of the trial court wherein the claims of the plaintiffs were dismissed.

The plaintiffs, for themselves and as representatives of the Ogude family of Ikuewhu village, Agbarho, Eastern Urhobo Division, claimed originally only against 1st to 5th defendants and one other person, in their personal capacities. At a stage during the proceedings, the 7th, 8th, and 9th defendants, on their own application, were joined by order of court as co- defendants, the 7th defendant defending as representative of Eridi family of Ehwerhe village, Agbarho in Eastern Urhobo Division, while the 8th defendant defended as representative of the Okparigun family of Ehwerhe village, the 9th defendant represented the Okparegbe community of Agbarho, of which all the parties were members. The Okparegbe community consists of five villages, namely, Ikuewhu, Ehwerhe, Ophori, Ekrerhanwu and Ornhrughele.

The claim, as finally amended, consists of three heads against all the nine defendants for a declaration of title to a piece of land described in a survey plan, No.ER.1491, which was admitted in evidence and marked exhibit A, the land being in Agbarho Division in Bendel State, and described in the pleading of the plaintiffs as “Ogude land” but which in fact was commonly known as “Okan”; N1,000 damages for trespass to the land and an order of injunction. The fourth head was against the first four defendants for an order of forfeiture for misconduct.

Pleadings were filed and amended by orders of court. The plaintiffs and the defendants each filed a survey plan which was received in evidence as exhibits A and C respectively. Both parties also called witnesses. In a very carefully considered judgment, the trial judge dismissed the plaintiffs’ claim.

The plaintiffs, dissatisfied with the judgment dismissing all the reliefs claimed, appealed to the Federal Court of Appeal (as it was then called), on four grounds, to wit:-

“1. The said decision is against the weight of evidence.

2. The learned trial judge erred in law in failing to distinguish the case of the 1st – 6th defendants from that of 7th – 9th defendants as regards the claim for declaration of title and/or in the application of the doctrine of Ekpo v. Ita (which was misapplied in this con) when as against those defendants, the issue was who as between them and the plaintiffs, had a better title or a better right of customary occupancy over the disputed land.

Particulars of Error.

(i) There was an ancilliary relief for a declaration of decree of forfeiture against the continued user or occupation of the disputed land by the 1st – 4th defendants who had alienated portions thereof to the 5th – 6th defendants and showing that what the plaintiffs are seeking by the declaration is recovery of possession of the land or the right to possession.

(ii) The 1st – 4th defendants who had denied the plaintiffs’ title in favour of the 7th and 9th defendants were put on the land by the plaintiffs.

It was so found by the learned trial judge.

(iii) The 7th – 9th defendants were interveners joined in the action by order of court on their own application.

3. The learned trial judge erred in law in dismissing the plaintiffs’ claim for forfeiture against the 1st – 4th defendants by virtue of section 1 of the Land Use Decree No.6 of 1978 (sic). When the forfeiture sought, is a declaration of forfeiture as to customary right of user or occupancy of the disputed land which is a right not extinguished by the Land Use Decree aforesaid.

Particulars of Error:

The said claim was made in a pending proceedings within the meaning of section 40 of the Land Use Decree 1978, wherefore, the question whether the title of the plaintiffs as reversioners survived the Decree was irrelevant and otiose.

4. The learned trial judge erred or misdirected himself in law when he dismissed the plaintiffs’ claim in its entirety or as to the declaration of title and injunction sought, by reason of:-

(a) his difficulty which was not explained, in preferring the version of the plaintiffs’ traditional evidence to the defendants’ (sic),

(b) of the plaintiffs’ failure to show that such acts on their part have been numerous and positive enough to warrant the inference that they are exclusive owners of the land in dispute,

(c) the plaintiffs’ failure to establish clear boundaries of the land they are claiming, when the reasons if at all, for so holding as above are circumstances germans(sic) to an order of non-suit and not dismissal.

Particulars of Error or Misdirection:

(i) The learned trial judge made no finding as to ‘Okan’ claimed by the plaintiffs to be an integral part of Ikwekwu and an outspread, (the traditional evidence as to its founding by Ogude (sic) accepted), being a separate village.

(ii) The extent of the land claimed by the plaintiffs as being in dispute and in respect of which the declaration was sought, was clearly delineated in exhibit A; the claim encompassed a smaller portion of a larger piece or parcel of land stated to be plaintiffs’ land not in dispute.

(iii) Although, the defendants put in issue a larger piece or parcel of land than claimed by the plaintiffs, yet they filed no cross-action or counterclaim wherefore, the plaintiffs are entitled to a declaration in respect of the smaller portion claimed by them upon proof of ownership.

(iv) There was finding by the learned trial judge that the plaintiffs are in effective occupation of at least, a portion of the land in dispute.

(v) The land in dispute being known by the common name of ‘Okan’ though designated by the plaintiffs as ‘Ogude family land’ in exhibit A, its identity was not in issue.

(vi) The issue of the grant of ‘Okorophan’ to Ophan by Ogude or his grandson as part of Okan land being one of traditional evidence, the failure to show or reflect the spot in exhibit A does not materially affect the plaintiffs’ case vis-a-vis boundaries of land beyond the portion the plaintiffs were claiming.

(vii) The defendants (sic) testimony supports in part, paragraph 13 of the plaintiffs’ amended statement of claim the non proof of which the learned trial judge commented on adversely.

(viii) The failure by the plaintiffs to call witnesses to identify certain features in exhibit A was a matter of inadvertence or technical hitch.

(ix) The learned trial judge did not advert to his earlier finding as to a grant of portion of the disputed land by the plaintiffs to the 1st – 4th defendants.”

(The Italics mine for emphasis).

After hearing the arguments of counsel, the Court of Appeal allowed the appeal, set aside the order of dismissal and entered judgment for the plaintiffs, excepting as to damages for trespass, which relief the plaintiffs abandoned before that court. It is necessary to observe that the statement of claim, notwithstanding amendment thereto, pleaded no act of trespass against any of the defendants, excepting the 5th and 6th defendants, which the trial court found was not proved. In the Appeal Court and before this Court, the respondents did not contend that the dismissal of the relief by the trial court was not justified. The respondents however maintained throughout that the claims for injunction and for declaration of title are sustainable on the facts as pleaded and as found by the trial court.

In presenting his argument before that court, Dr. Enemeri, for the plaintiffs/appellants, proceeded on the false basis that the trial judge found that 1st to 4th defendants were customary tenants of the plaintiffs’ family, whereas that court did not so find. What the trial judge found was that he accepted the story of the plaintiffs that ‘they placed Obukhowo on the land and that through him the 1st to 4th defendants came on the land.” Further, the trial judge said: “In paragraph 23 of the statement of claim, plaintiffs pleaded that though the grant to Obukhowo was rent free, because of his relationship with Akpoisogie, and that the usual conditions attaching to customary tenancy were imposed and that the consequences of misbehaviour and denial of plaintiffs’ rights were explained and understood, but in their evidence before the court, both the 1st plaintiff and plaintiffs’ 2nd witness, Akpoisogie, said that no conditions were attached to the grant. No evidence was given that the grant was subject to good behaviour as pleaded.” The Court of Appeal accepted the false premises and proceeded on that basis. Throughout his judgment, Agbaje, J.CA, did not advert to this basic finding. His judgment was predicated upon the finding that they were customary tenants, which the trial court did not find. Agbaje then referred to Dr. Enemeri’s submission where he said at (p.362/13) –

“That the misconduct which the learned trial judge found the 1st to the 4th defendants were guilty of was that of denying the title of their landlord. It was the submission of Dr. Enemeri, counsel for the appellants that in such a situation forfeiture was automatic. For this proposition he placed reliance on the case of Oghalli Akpagbue v. Ndueku Ogu & Ors. (1976) 6 S.C.63 at 74 to 75 and Dokubo v. Bob- Manuel (1967) 1 All N.L.A. 113 at 121.”

Counsel for defendants (respondents at the Appeal Court, now appellants in this Court) relied on Longe v. Ajakaiye (1962) 1 All N.L.R. Part 4 612 at 617. It was the view of the learned Justice of Appeal that that decision was unhelpful to the defendants’ case. But again, he was only partially correct. He then went on to say at p.364/43:-

“So again, on the authorities, I am satisfied that Dr. Enemeri was right in his Submission to us that the misconduct which the 1st to the 4th defendants have been found to be guilty of carried automatic forfeiture and such a decree should have been made against them in favour of the plaintiffs barring any other obstacles in their way. The learned trial judge did not decree forfeiture because he felt he could not do so because of the Land Use Decree”.

It is now appropriate to consider ground 4 of the appeal in this Court which reads:

”The learned Justices of the Court of Appeal erred in law when they decreed forfeiture against the 1st to the 4th defendants/appellants in favour of the plaintiffs/respondents by dwelling unnecessarily on the casual reference of the court below to the Land Use Decree.

Particulars of Error:

(a) There is no evidence that the plaintiffs/respondents put the 1st – 4th defendants/appellants on the land as pleaded in paragraphs 25 and 26 of the amended statement of claim.

(b) The 1st plaintiff/respondent and the plaintiffs’ 1st witness (Madam Akpoisogie) said in their respective evidence that there was no condition attached to the grant to Obukhowo. The grant, if any, was an out and out gift.

(c) There is evidence that the 1st – 4th defendants/ appellants are natives of Agbarho and belong to Okparegbe community as the plaintiffs/respondents and have been on the land for many generations.”

Mr. Lardner in his argument under this ground, submitted that the evidence of the plaintiffs’ witnesses, (1st plaintiff and 2nd P.w.) was confined only to grant to Obukhowho. Both testified that no conditions as pleaded in paragraph 23 were imposed and that was the main reason why the trial judge refused to order forfeiture against 1st to 4th defendants. The other reasons given by the trial judge were unnecessary and irrelevant. The Court of Appeal, counsel argued, ought not to have made the order simply because the trial judge gave other reasons which are untenable. In his brief on behalf of the respondents, Dr. Enemeri defended the decision of the Court of Appeal by reference to the case of Akpagbue v. Ogu (1976) 6 S.C.63 at pp. 74- 75. In my view, that decision cannot be regarded as authority having regard to the case of Dokubo v. Bob-Manuel which it purported to follow and other accepted authorities. Dokubo’s case did not say that an order for forfeiture is automatic for misconduct as a universal incidence of customary tenure. See Taiwo v. Dosunmu & Ors. (1965) 1 All N.L.A. 399. For there must be evidence of that custom of the particular community. Chief Williams in his argument before this court did not touch the point. Again, Agbaje, J.C.A was also in error in saying that Longe’s case cited by counsel for the respondents before the Court of Appeal was not helpful to the respondents. For he seemed to have mis-understood the decision. The Supreme Court adverted to the need for evidence to prove the particular custom. It stated at page 617 –

“It has been contended in this appeal by Mr. Omisore for the plaintiffs that the latter (meaning the plaintiff) was entitled to possession because of the mis-behaviour of the defendant in pulling down the old Akodi and building a new one.

Apart from the absence of evidence that such an act constituted such ‘misbehaviour’ under native law and custom as would incur a forfeiture -”

In fact the Supreme Court refused to order forfeiture of the part of the land on which the Akodi was built.

In that case, as in this, there is complete absence of evidence that the misbehaviour of the kind complained of against the defendants necessarily incurred forfeiture. I shall have more to say later on the point.

It is pertinent to note at this stage that learned counsel for the respondent stated in his brief at p.1-

“It is to be noted at the outset that the Court of Appeal made no new findings of fact but applied the findings of fact made by the learned trial judge in the way and manner to which they are susceptible in law by drawing the right conclusions and inferences where wrong ones have been drawn or by appraising the facts and ascribing probative value on them where the learned trial judge in error did not or imperfectly did so.” See Federal Commissioner for Works & Housing versus Lababedi & Ors (1977) 11-12 SC.15 at 24-25.

But that was not what the Justice of Appeal did. He went beyond that by evaluating the evidence and making his own findings. What he did was not inferences but evaluation of the evidence.

I have pointed out that the trial court did not find that the 1st – 4th defendants were customary tenants as Dr. Enemeri made the Court of Appeal to believe.

In their evidence before the court, both the 1st plaintiff and plaintiffs’ 2nd witness Akpoisogie said that no conditions were attached to the grant. No other witness testified on the issue. The submission of Dr. Enemeri for the plaintiffs/appellants in the Court of Appeal and which the court accepted was that forfeiture for misconduct by a customary tenant was automatic. It is my very humble view that what the court should consider were the facts pleaded and proof by evidence in support. Paragraph 23 of the statement of claim stated that the grant was made rent free to Obukhowo and whether there was evidence to prove that the usual conditions attaching to customary tenancy were imposed, and the consequences of misbehaviour and/or denial of plaintiffs title were explained and fully understood.

It must be kept in mind that all the parties are members of the Okparegbe community.

3rd P.W., Chief James Ayakarume Nikoro, the Otota of the entire Agbarho clan (p.167/18-20) testified that the plaintiffs and the defendants are all of Okparegbe community. Although described by the trial judge as a slippery witness, he made no finding to the contrary. The evidence of the two principal members was that no conditions were attached to the grant. The point is that the trial court did not find that Obukhowo was a customary tenant. The evidence was plaintiffs’ family made a grant, which could be absolute grant or customary grant which might or not be subject to the conditions as pleaded in paragraph 23 of the amended statement of claim. Native law and custom is a matter of fact to be proved by evidence, excepting such custom is so notorious that the courts will take judicial notice by reason of many decisions of the courts of the particular native law and custom. The statement of claim and statements of defence averred various grants to various persons and communities, for example, the Agbarho community and the Okparegbe community. The question then arises, what was the nature of the grant This could only be resolved by evidence. It could not be judicially noticed, except it is a notorious one. In his argument to the appeal court, Dr. Enemeri was recorded to say:- (at p.335 lines 1 to 2) –

“1 submit that the judge having found that the 1st to 4th defendants are our customary tenants (sic) came on the land through us they cannot deny our title by invoking title of 3rd party. Section 151 of the Evidence Act. See case of Anukanti v. Ekmonsease (1978) 1 L.R.N. at p.351 – 2 or (1978)1 S.C.37”.

Agbaje, J.C.A., in his lead judgment (Ete and Okagbue, JJ.C.A. concurring), in accepting the submissions, said, (from p.359/25 – to the last line:)

“It appears to me clear from the authorities that Dr. Enemeri was right in his submissions to us in this regard. In fact that much was recognised by the learned trial judge in the following passage from his judgment which I have reproduced above namely:-

‘Much as I have already accepted that radical title to the area granted to Obukhowo lay in the Ogude family, the position today would seem to be different.

Section 1 of the Land Use Decree 1978 now vests title to all land in Bendel State in the Governor’.

The judgment then went on to consider the irrelevant issue of S.40 of the Land Use Act 1978. After citing an unreported decision of that court i.e. FCNB/37/80 Obi Nzeka II v. Otusha Akpauna delivered on 2/2/81, Agbaje, J.C.A. went on to say:-

”The Land Use Act 1978 does not abort all pending actions for a declaration of title to land use as the case in hand, section 40 of the Act provides that such proceedings may be continued and be finally disposed of by the court concerned…”

I entirely share this view. But as I have observed, that it was not the only reason why the trial judge refused to order forfeiture against the 1st – 4th defendants.

The learned Justice of Appeal then quoted another passage in the judgment of the trial court, which reads:-

“although I find that those defendants have been blameworthy in their conduct of denying throughout this case, that they derive possession from the plaintiffs, no useful purpose will be served by making an order for forfeiture.”

The authorities cited by Dr. Enemeri and which the Justice of Appeal accepted, did not say that the Okparegbe community native law and custom, any grant of land whether to a native community or to a member of the community or to any other person, was of such notoriety that the courts must take judicial notice of the incidence of such grant. First, there was no evidence of the nature of grant. There must be a finding that the grant was one of customary tenancy, and subject to the conditions pleaded, for the grant could have been absolute. Here, the evidence was that no conditions were imposed as pleaded. In effect, the plaintiffs pleaded a particular incidence but failed to prove it – that the grant was the type pleaded in paragraphs 23 and 27 of the statement of claim. Secondly, even if there was a finding to the effect that the defendants were customary tenants, evidence should have been adduced of the sanction or consequence of breach of the conditions pleaded, unless the custom of the particular community in a notorious fact; say, similar to the Yoruba customary law of succession on intestacy or sale of family land by a member of the family without the concurrence of its principal members or the consent of the head of the family.

In Agedegudu v. Ajenifuja (1963) 1 All N.L.A. 109, there were two contentions:-

(i) whether this grant was absolute or

(ii) one subject to certain conditions

This court at p.117 quoting Liadi Giwa v. Bisiriyu Erinmilokun (1961) 1 All N.L.A.

Pt.2 294, said –

“In the case on appeal, evidence was led on both sides as to the nature of the grant made to the defendants’ ancestor, Chief Oshodi, a warrior chief. Evidence was led of acts of ownership exercised on the land within living memory by the descendants of Chief Oshodi, and finally the appellant’s case that tribute was paid …All this led the trial judge to the conclusion which, in my judgment, was irresistible that:-

‘The preponderance of evidence would support the view that grant to the defendants’ family was an absolute grant and not on customary tenancy’.

And earlier at p.117:-

“It is a well established principle of law that native law and custom is a matter of evidence to be decided on the facts presented before the court in each particular case, unless it is of such notoriety and has been so frequently followed by the courts that judicial notice would be taken of it without evidence required in proof”

In Dokubo & Anor v. Bob-Manuel (1967) 1 All N.L.R. 113 (which was the authority relied upon in Akpagbue & Ors. v. Ogu (1967) 6 SC.63 p.74) evidence was led as to the nature of Kalabari native law and custom. At. p.115 of the report, Coker, J.S.C., delivering the judgment of the court stated:-

”The case canvassed by and for the plaintiffs was that by their misconduct, the defendants had forfeited all their rights and interests in the land in question which was alloted to them under Kalabari native law and custom. The learned trial judge took the view that the conduct complained of by the plaintiffs was according to the evidence which he accepted of such a nature as to entail forteiture.”

Further at p.121 of the said report stated:

“There was positive evidence before the judge which he accepted, that under Kalabari native law and custom, land allotted …and breach of that which is an act of misconduct, which will involve forfeiture…”.

The case of Oghali Akpagbue v. Nduoku Ogu & Ors. (1976)6 SC.63 pp.74-75 cannot therefore be authority for the statement that forfeiture is automatic whenever a customary tenant denies the title of his landlord particularly without evidence to prove the custom. The cases do not say invariably incidence of customary tenure is universal throughout the country. The case cannot override the provision of section 14(2) of the Evidence Law, Cap.57 of the Laws of Bendel State which provides:

“Where a custom cannot be established as one judicially noticed, it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons concerned in the particular area regard the alleged custom as binding on them”.

In the recent case of Ojemen v. Momodu (1983) 1 SC NLR 183, the principle regarding proof of customary law was examined and fully discussed. The principle embodied in S.14(2) of the Evidence Law Cap.57 Vol.III Laws of Bendel State and by a long series of decided cases is simple, and not open to doubt. It is a question of fact to be proved by evidence, except such evidence is of such notoriety by so many decisions of the courts, that judicial notice will be taken of such custom. Obaseki, J.S.C. at p.206 in Ojemen’s case supra stated the rule –

“I may at this juncture draw attention to the attitude of this court on the question of proof of a rule of customary law. I refer to the case of Adegboyega v. Igbinosun (1969) All N.L.R.1. There it was held inter alia as follows:-

‘it is settled law that except where a rule of customary law has received judicial recognition, such rule is treated for the purpose of proof as a matter of fact…”

See Chief G. A. Taiwo v. Semisemiyu Dosunmu & Ors. (1965) 1 All N.L.R. 399 p.405 where this Court held after an exhaustive review of the authorities that –

”The conclusion to which this review of the cases relied on by the trial judge leads us is that they do not show that the alleged custom has been acted upon by a court of superior or co-ordinate jurisdiction in the same area as the High Court of Lagos to an extent which justifies the High Court of Lagos in assuming that the parties to this case or persons of the same class look upon it as binding. In the result the appeal must be allowed and the case must be remitted to the High Court for trial. As we have already pointed out, the effect of our judgment is not to hold that the alleged custom does not exist, and it will be open to the first respondent to prove its existence in accordance with section 14(3) and section 56 and the following sections of the Evidence Act.”

The learned Justice of Appeal therefore misdirected himself by holding not only that the trial judge found that the 1st – 4th defendants were customary tenants, but also in holding that forfeiture was automatic. What the trial judge found was that the plaintiffs’ family granted the land to Obukhowo, and that the incidence of forfeiture for misconduct as pleaded in paragraph 23 of the amended statement of claim was not proved. A grantee of land is not invariably a customary tenant for the grant mayor may not be an absolute grant. The fact that the trial judge made irrelevant reference to the Land Use Act as another reason why he could not order forfeiture does not distract from the specific finding that the plaintiffs failed to adduce evidence to prove the incidence of forfeiture pleaded in paragraph 23 of the amended statement of claim. In the result, I hold that ground 4 of the appeal succeeds. I will therefore set aside the order of forfeiture against 1st to 4th defendants/appellants made by the Court of Appeal and the claim under that head is hereby dismissed. Grounds 1 and 2 will now be considered together:

Ground 1 is the general ground.

Ground 2: “The learned Justices of the Federal Court of Appeal erred or misdirected themselves in law when they allowed the respondents’ appeal and reversed or set aside the judgment of the lower court dismissing the plaintiffs/respondents’ claims for a declaration of title to the land in dispute by reason of there being no sufficient evidence on the record establishing the boundaries of the land in dispute.

Particulars of Error:

(i) Exhibit A does not show all the boundaries of the land in dispute according to the evidence of the 1st plaintiff/ respondent.

(ii) There is no evidence other than the ipse dixit of the 1st plaintiff establishing the boundaries of the land to which the claim relate (sic). It was so found by the learned trial judge.

(iii) The area claimed includes the whole of Okan village, the inhabitants of which do not belong to Ogude family and deny that Ogude family put any of them on the land. Ogude family did not give evidence that they put any of the people at Okan other than Obukohwo on the land. The extent of their buildings, their rubber plantations and farms are not shown in the plan exhibit A because according to the evidence of the 1st plaintiff they have no dispute with other persons at Okan village. A mere drawing of a plan of an area claimed is not enough evidence to ground a decree of title to land to a plaintiff. The plan, exhibit A is uncertain.

(iv) The plaintiffs/respondents admit that Ikuewhu village and Ehwerhe village have a common boundary which is not shown on the plan exhibit A. The plaintiffs/respondents denied having common boundary with the 7th and the 8th defendants/appellants pieces or parcels of land and yet failed to name whose land is on the common boundary between Ikuewhu village and Ehwerhe village.

(v) Okorophan said to have been granted by Ogude to Ophan at Okan situates at Orho – Agbarho or Okorophan village outside Okan village. Okorophan is not shown on exhibit A.

(vi) The portion of land said to have been given to Orhorhoro (page 127 of the record of proceedings of the trial court) within the area of dispute is not shown on exhibit A.

(vii) The defendants/appellants clearly related exhibit C, their plan to exhibit A the land in dispute contrary to the erroneous view expressed by the court of Appeal. The learned trial Judge rightly so found when he said ‘But the defendants’ survey plan (exhibit C) clearly puts all these area in dispute’.

It is necessary to restate certain fundamental principles. The Court of Appeal’s power to reverse the judgment of the trial Court is restricted to the limitations imposed by accepted and universal practice. An appeal court should refrain from fresh appraisal of the evidence on the clear findings of the trial court. Its function is not to re-evaluate the evidence and to substitute its own view for that of the trial judge, if the trial judge gave convincing reasons for coming to a decision when confronted with two opposing accounts. It is his duty to consider both accounts carefully and then decide on the balance of probability which of them to accept. See Paul O. Omogbere v. Ehigiator Edo (1971) 1 A11 NLR. 282.

The trial judge after reviewing the evidence, came to the conclusion that:-

“From my review above of acts of ownership as given in evidence, it is clear that the plaintiffs have not shown that such acts on their part have been numerous and positive enough to warrant the inference that they are exclusive owners of the land in dispute. With regard to the claim of declaration of title, therefore, plaintiffs have also not succeeded on this second principle.”

Now, it is for an appellant to satisfy the Court of Appeal that the findings of fact by the trial judge were perverse and unreasonable and cannot be supported by the evidence. The presumption being that the trial judge was right. The onus is on the appellant to prove the contrary. See Chief Frank Ebba v. Chief Warri Ogodo & Anor. (1984) 4 S.C. 84 at pp. 98-103. In the lead judgment, Eso, JSC., restated the principle that if the reason given by the trial judge in his judgment is reasonable and there is evidence in support, an appeal court is not justified in interfering with the findings of fact made by the court of trial, except such findings of fact are perversed and unreasonable, its duty is narrowed down to inference that could be drawn from proven facts. The findings of fact must be considered along with the pleadings, in order to determine whether the plaintiffs proved their case and are entitled to judgment. The trial judge, after carefully reviewing the evidence adduced by the parties, made the following findings of fact:-

”The plaintiffs failed to prove the various boundaries of their land as pleaded”, and observed (at p. 307/13-30) as follows and in his own words:-

“But apart from failing to establish by evidence either of the principles on the basis of which title may be decreed, plaintiffs, in my view, have also not established clear boundaries of the land they are claiming. In their evidence describing their land, they (the plaintiffs) still failed to prove the boundaries shown therein. None of the owners of the features by those boundaries was called to testify to prove the boundaries. It is settled that declaration of title cannot be granted in respect of land whose boundaries are not defined. Vide Okosun Epi v. Johnny Aigbedion (1972) 10 SC. 53.”

The land which is the subject-matter of the dispute is alleged to be part of the land which Ogude, their ancestor, acquired from time immemorial which boundaries are described in paragraphs 11 & 12 of the amended statement of claim which read:

“(11) Ogude also acquired a large parcel of land in the neighbourhood of Ikuewhu village, the same extending to and embracing the present site of Okan village and having common boundary with the land of Ohrerhe people on one side; and extending to the stream called Echegba which partly marks the boundary between Ikuewhu and Ovhori and Ovwodokpokpo villages on the other side. Further, part of the land founded by Ogude extends right up to a river (Ikuewhu river) which forms the natural boundary with the land of Okpe people.

(12) The land in dispute forms but a part of the larger tract of land originally founded by the plaintiffs’ ancestor in respect of which he and his descendants exercised maximum and exclusive rights and act (sic) of ownership and possession from time immemorial.”

The judgment of the trial court reviewed the evidence of each of the witnesses and found the following facts:-

(1) The plaintiffs story that Ogude, the ancestor of the plaintiffs, was one of the three sons of Esawe(or Osame) who finally came to settle at Ikuewhu and that each of them founded a quarter and that Ekenoma (f) was one of his six children.

(2) He rejected the story of the defendants that Ekenoma was not the daughter of Ogude. He relied partly on exhibit B in resolving the conflicting traditional versions as to whether Ogude was a person, or the name of a tree, as defendants alleged.

(3) As to the founder of Okan land, which in reality is the land in dispute, the trial judge stated:

“Having held that there was an Ogude in the history of Ikuewhu, the next issue is whether it has been proved that Ogude founded lands extending up to and including Okan, the only evidence linking Ogude with Okan in his life time was that he granted land at Okan to a certain man called Ophan and that it was his grandson Irahwo who demarcated the portion for Ophan. The spot, called Okor’ Ophan, is not shown on plaintiffs’ survey plan. It is alleged in paragraph 13 of the statement of claim that after Ogude’s death the place was later given out by plaintiffs’ family to the Agbarho community for the development and planning of Orho-Agbarho.

But no evidence was led on this allegation. On their side the defendants (especially 2nd defendant) admitted in evidence that there was a place called Okor’ Ophan now within Orho-Agbarho, but denied that plaintiffs ever granted the place to any body.

I have already set out defendants’ version of how Okan came to be founded by Eridi and finally handed over to the Okparegbe community. I am afraid, I have not been able to see why I should prefer one story to the other. From the totality of the evidence including acts of ownership which I shall later deal with, it would appear that both the descendants of Ogude and the descendants of Eridi made their presence felt on one part or the other of what now constitute Okano But it is for a plaintiff to establish his claim. I am not satisfied with the traditional evidence that Okan, marked as OGUDE FAMILY LAND and labelled as being in dispute in exhibit A and roughly coinciding with the area marked OKAN LAND in 7th – 9th defendants plan (exhibit C), was founded by Ogude.” (italics mine).

(4) Having found the evidence of tradition on both sides inconclusive, the trial judge proceeded to examine seriatim, the evidence of each of the various acts of ownership pleaded in the statement of claim and found as follows:-

(a) The alleged grant by Ogude of part of his land to Ophan and the alleged release by his descendants to Agbarho Community was not established;

(b) That grant to one Ohorho, an Iteshiri man, trading under a tree called Okan, the area which later became Okan Market and Okan village was equally not proved.

(c) Area of land granted to one Orhorhoro who was alleged to have married Ogude’s descendant called Unuavwerhi, said to be partly within Orho-Agbarho and partly within the land in dispute, was not shown in their survey plan to enable him relate it to the land in dispute, and besides, no descendant of the grantee was called to testify, nor was any explanation offered for failure to call supporting evidence. The judge was therefore unable to accept this piece of evidence.

(d) No evidence was called to prove the various features shown on the plan and pleaded as acts of ownership by the plaintiff namely:-

1. Land granted to Ogude family. Kolanut planted by Ogude.
2. Kingdom Hall of Jehovah’s Witnesses, Okano
3. Property of Enakerakpor of Imarch family of Ikuewhu.
4. Property of Patrick Umukoro of Ikuewhu.
5. Property of Erusanure of Ikuewhu.
6. Property of Alagbasodje of Igboroba family of Ikuewhu.
7. Rubber trees planted by Oghuvbu of Ogude family.
8. Rubber trees planted by Obara of Ogude family.

And to quote the words of the trial judge:-

“Since all these features are on the land claimed by the plaintiffs, one would have expected that the plaintiffs would call some of the present owners of the features to come and testify that they were placed on the land by the plaintiffs.

Even Oghuvbu and Obaro – both of whom are shown on plaintiffs’ plan as members of Ogude family were not called to prove that they were the owners of the rubber plantations shown as belonging to them. These to my mind, are all important acts of ownership and enjoyment of the land.”

“Furthermore, plaintiffs gave evidence that they were the owners of the land granted to Chief Edmund Agbowu and to the early European traders and that they authorised the Okparegbe community to execute the deeds of grant. The defendants denied these claims emphatically and said that they made the grants in their own right. They went further to tender the indenture (exhibit C) dated 12th April, 1941 to prove their contention. Exhibit G is a deed by which the Nigerian Properties Company Ltd. surrendered to the community land which they had acquired from the original grantees, namely the United African Company. It is difficult to accept the ipse dixit of the plaintiffs on these vital issues; and the fact that the plaintiffs only amended their pleadings very much later in the day to say that the grants were made by Okparegbe community on their authority (and not by themselves as they had earlier pleaded and denied by the defendants) would seem to tilt the balance in favour of the defendants.”

The trial court found that the plaintiffs’ family granted land to Obukhowo the elder brother of the 1st – 4th defendants – (the area edged ‘red’ in exhibit A) and ”that they ptecea Obukhowo on the land and that through him the 1st to the 4th defendants came on the land.” (The italics mine for emphasis.) He did not find that Obukhowo or 1st and 4th defendants were customary tenants. He said “placed” them on the land.

“The exhibit B (terms of settlement) clearly recognises plaintiffs family as at least, part-owners who have previously exercised acts of ownership, and I have said exhibit B binds the 7th – 9th defendants. But even in exhibit B, it would appear that the ownership is linked with the rest of Ikuewhu, which, as has been seen, was founded by Ogude and his two brothers and Ekare” (the italics mine also)

(5) The Claim for trespass pleaded in paragraph 27 of the statement of claim, alleging 1st – 4th defendants sold 6th defendants land outside Obukohwo’s land, was not proved.

He said:-

“I have no evidence before me that the place where he (6th defendant) entered was other land of plaintiffs or that the 1st – 4th defendants put him there.”

It is pertinent to note that this important finding escaped the notice of the justices of the Court of Appeal as will be shown later in my judgment. The particulars on ground 2 quoted above contain all that the defendants/appellants adumbrated in the brief.

At the trial, both plans filed by the plaintiffs and the defendants were received in evidence as exhibits A and C respectively. Each of the parties called witnesses who gave evidence, including the licensed surveyor who prepared the two plans.

The pleadings put the entire land shown on the plaintiffs’ plan (exhibit A) in issue as to who exercised the various acts of possession of the entire surface of the land. It was therefore necessary for the plaintiffs to prove the boundaries and the contents of the larger parcel of the land, described in paragraph 11 of the amended statement of claim, which Ogude acquired, and also prove that the land shown in exhibit A is part of that land. The importance of it is obvious. The plaintiffs’ claim is that the land in dispute over which they seek the court to declare is a small area and part of the vast piece of land which Ogude acquired in his life-time and over which he and his descendants have been exercising the various acts of ownership and possession pleaded in paragraphs 11, 12, 13, 14, 15, 16, 21 and 22. These averments were traversed by the 7th – 9th defendants as afore- said in their own statement of defence. The onus was on the plaintiffs to prove the boundaries of the land including the area verged pink in exhibit A, they were claiming. In an attempt to discharge the onus the plaintiffs called a surveyor, P.W.1, by name Gabriel Cyril Olowu Eriyamremu. He prepared exhibit A and testified that on the plan Ogude family land has boundary on the southern side with Orho Agbarho. There is a river forming natural boundary on the north-west. Then, the rest of the undefined land of Ogude family. According to this plan, Ikwuewhu village is on the north. There is an arrow showing it. Later in his testimony under cross- examination, he said “The total extent of Ogude family land is not shown in this plan.”

1st plaintiff, in the course of his own testimony, spoke of a local war between the people of Ikwuewhu and the people of Ehwerhe. They later ended the war, and settled their boundary. The boundary which was then agreed upon remains the present boundary between Ikuewhu and Ehwerhe.

He further testified that “On the left is our boundary with Orhovpokpor. A swamp forms the boundary. But that side is not in dispute by the plaintiffs.” 1st P.W. testified, “Otherwise I would have brought a witness to testify as to that boundary. The swamp is known and called Echogba. Still standing on the road on the land in dispute facing Orho Agbarho Ikuewhu would be behind me. Ewherhe would be behind me; but it is not shown in the plan because the plan is only concerned with the one in dispute.” His evidence was contradicted by 8th P.W.

The 8th P.W. Ogoro Ejeludu gave evidence that he knew the land in dispute and the parties. He said:-

“I have a common boundary with the defendants. I am on Ogude land which has common boundary with the defendants. I am on Ogude land which has common boundary with the defendants who are natives of Ehwere like myself.”

He added:

”There is a swamp separating the Ogude family land which I occupy from the land of the defendants. I have rubber trees on my land and the defendants have rubber trees on theirs. This swamp is cal/ed by two names Echegban or Okuriovo.”

Under cross-examination the witness said:-

“I have land which is in the boundary with defendants.

“My other boundary is with other descendants of Odjevwedje.”

The above was the sum total of evidence given by the plaintiffs as to the boundaries of the land acquired by Ogude. It may be helpful to keep in mind the following pieces of evidence given by the 1st plaintiff as to the contents of the land in dispute as depicted in exhibit A. At p.119/35, 1st plaintiff said:

“I can mention those who have boundary with our Ogude land”

But he never mentioned their names later in his evidence.

He also said at p. 120/34 –

‘That area of land which was granted Ophan is now on the Orho-Agbarho side and not within the land in dispute.”

The witness testified that part of the land granted Orhovhoro is within the land which is now in dispute. The children of Orhovhoro dug a well on the land. Again, the witness said:

“Part of the land in dispute was granted to German traders in the name of Okparegbe community. Okparegbe Community also granted part of the land in dispute to the Endumos. Five villages constitute Okparegbe community.

“We have no boundary with Okparigun, but we have boundary with Ehwerhe. Our plan is not made to the extent of showing our boundary with Ehwerhe. The plan is only concerned with the land in dispute. The Eridi family have their own lands.”

”The market is within the area in dispute. I told the surveyor not to indicate the market because it now belonged to the Government… part of Okan village is within the plan. “I know one Orhume of Okano His compound is within the land in dispute. Even the compound of defendants’ counsel’s father is within the land in dispute. “I know one Edward Ovhereme. He lives at Okano His building is in Okano He has two house at Okan.” “I have no land dispute with the people of Okan as a whole”.

From the above, it is clear that the land described in exhibit A has not been related to the larger parcel of land allegedly acquired by Ogude as pleaded in paragraph 11 and over which he and his descendants exercised various acts of ownership pleaded in subsequent paragraphs of the amended statement of claim.

In Onyema Oke & Ors. V. Amos Eke (1982) 12 S.C. 218, it was held by this Court that evidence of the features that marked out the boundaries of the land must be given to entitle the plaintiffs to the declaration they seek.

Plaintiffs’ surveyor did not give any evidence on the defendants’ plan, even though the plan was filed with the statement of defence. The defendants called their own surveyor, who testified that exhibit A covers a smaller area than his own plan exhibit C.

The trial judge after reviewing the evidence 10 observed:-

“1st plaintiff then described the various boundaries of Ogude land which apart from the river, are not shown on plaintiff plan, exhibit A”.

Later in the judgment, he said at page 307/15-30:-

“Plaintiffs, in my view, have also not established clear boundaries of the land they are claiming. In their evidence describing their land, they mentioned various boundaries which are not shown on their survey plan, on the ground that those areas were not in dispute. But the defendants’ survey plan (exhibit C) clearly puts all those areas in dispute. But even going by plaintiffs’ survey plan alone (exhibit A) which shows an area of 37.88 acres as being in dispute, the plaintiffs still failed to prove the boundaries shown therein. None of the owners of the features by those boundaries was called to testify to prove the boundaries. It is settled that declaration of title cannot be granted in respect of land whose boundaries are not defined. Vide Okosun Epi v. Johnny Aighedion (1972) 10 S.C. 53”

These findings of the trial judge were reversed by the Court of Appeal.

This was how Agbaje, J.C.A. did it. At p. 348/21- p.349/2 –

“It is necessary at the outset of this judgment to identify the land in dispute in this case. Since the defendants none of them have set up a counter-claim in this action, we only have to go by the plaintiffs’ statement of claim in order to find out the land they put in dispute in this action. In this regard, paragraph 22 of the plaintiffs’ amended statement of claim pleads as follows:-

(22) The land in dispute and the features thereon as well as the boundaries thereof are as shown on survey plan No. ER. 1491 filed in support of this action SAVE and EXCEPT that the words on the said plan relating to the grant made to Chief Edmund Agbowu should read “LAND GRANTED TO CHIEF EDMUND AGBOWU BY OKPAREGBE COMMUNITY’, the said plan having been prepared by Chief G.C.O. Eriyamremu, licensed surveyor.

The plan in question dated 10th May 1976 was put in evidence by the P.W.1 Gabriel Cyril Olowu , a licensed surveyor and was marked exhibit A. So, it is the area of land verged red on exhibit A which was in dispute in this case and it was in relation to that land that all the reliefs sought by the plaintiffs against the defendants were directed.”

With respect, I think this is a misdirection. I have earlier set out that the pleading of the plaintiffs traced this parcel of land to part of a larger area which Ogude acquired. Paragraph 12 stated that the land in dispute forms but part of the larger tract of land originally founded by him as described in paragraph 11 and paragraph 21 spoke of “grants of portions of plaintiffs’ family land … to Okparegbe community”. Paragraph 22 described the land in dispute by reference to a survey plan and referred to the same land in dispute in paragraphs 12 and 23. All these averments were denied by the 7th – 9th defendants, who tendered a plan showing a larger area of land. The duty of the court is to consider all the evidence which is relevant to the facts pleaded. The Justices of Appeal erred in directing their minds to the plan of the plaintiffs only, and not the whole evidence, including the plan of the defendants (exhibit C). All the evidence should be considered, particularly in relation to the averments in paragraphs 12 to 23 and the contra averments in the statement of defence to which I have early drawn attention. The usual practice in the courts is look at both plans in relation to the issues raised in the pleadings:

In Amata v. Modehme (1952) 14 WACA. 582, the Supreme Court found that the plaintiffs’ plan was inaccurate. Evidence of the western boundary of the land was unsatisfactory. The court dismissed the plaintiffs’ case after allowing the appeal of the defendants. In Anukanti v. Ekwonyenso (1978) 1 L.R.N. 346, page 346 the Supreme Court examined the plans filed by the two parties for a better understanding of the issues raised in the pleadings. The fundamental principle was enunciated in A.P. Mogaji & Ors. v. Madam Rabiatu Odofin (1978) 4 SC. 91, p.93, where Fatai- Williams, J.S.C. (as he then was) stated:-

“the totality of the evidence should be considered in order to determine which has weight and which has no weight at all. Therefore in deciding which set of fact given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial judge after summarising all the facts, must put the two sets of facts in an imaginary scale, weigh one against the other, then decide on the preponderance of evidence which weighs more, accept it in preference to the other and then apply the proper law to it.”

The law is clear and not open to doubt that this court has constantly held that in an action for title to land, the onus is always on the plaintiff to establish an entitlement to the land mass with ascertainable boundaries. See Chief Nyong Etim & Ors. v. Chief Ben E.A. Eyo & Ors. (1978) 6 SC. 91, 93. In Onyema Oke & Ors. v. Amos Eke (1982) 12 S.C. 218 p.248 – this court held that evidence of the features that marked out the boundaries must be given to entitle the plaintiffs to the declaration they seek. It is my view that it is not sufficient to produce a survey plan of an area without linking it with the larger area of which the smaller area is only a part. The smaller area must be related to the whole and evidence of acts of ownership must also be adduced. Later in its judgment, the Court of Appeal observed: “The plan exhibit C was put in evidence by the defendants showing apparently a much larger area of land than that shown as the land in dispute in exhibit A. However, no attempt was made by the defendants to specifically relate it to the land in exhibit C. In any case, as I have said above, the land in dispute is as shown in exhibit A and the plaintiffs’ claims were related to that piece of land.” Brett Ag. C.J., said in Nwokafor & Ors. v. Udegbe & Ors. (1963) 1 All NLR. 101.

” it is not enough for a plaintiff asking for a declaration of title to set up a case which is a little more probable than the case put forward by the defence or of which the highest that can be said that is, in the absence of better evidence there are some grounds for accepting it.”

And as Webber C.J. said in Kodilinye v. Odu (1935) 2 WACA 336

“if the whole evidence in the case be conflicting and somewhat confused, and there is little to choose between the rival stories, the plaintiff fails in the decree he seeks and judgment must be entered for the defendant”.

Mr. Lardner argued that the owners of the land forming boundaries with the plaintiffs should have been called, but were not called. He argued that the trial judge appreciated the fact – by saying the plaintiffs failed to prove the boundaries. It was not enough that a plan was produced showing the area of land in dispute. They must show that the mass of land shown on the plan was in their possession and that they exercised exclusive acts of ownership over the whole area. While they say the land was Okan, yet they admitted that only part of the plan was in dispute that Okan market was included within the disputed area, even though they said it was government (or Okparegbe community) who owned it. They said there was no boundary between Okan and Ikwuewhu and that Ikuewhu has no communal land, yet their plan showed Ikwuewhu communal land. He argued that the various features of the land were not proved, as found by the trial court. He mentioned the house of D.W.5, he also pointed out that 1st plaintiff testified that Ikuewhu had no community land whereas their plan indicate the contrary. Counsel further argued under ground 4 that the plaintiffs failed to prove exclusive ownership of the land.

In his reply, Chief Williams submitted that the 7th to 9th defendants joined as parties on their own volition. There was no claim against them for trespass, nor originally for any relief. They alleged that they owned the land and granted portions to the 1st – 6th defendants and the court found against them. He submitted that there was ample evidence of the boundaries of the land and that the onus was on them to show which area they granted. He argued that the defendants’ surveyor did not compare the two plans (exhibit A and C) and therefore it cannot be said that the two are related. As to acts of ownership, the trial court found that the 1st and 4th defendants were customary tenants and were put on the land by the plaintiffs, and that there was no admission that the 1st to 4th defendants were members of the Okparegbe Community and the issue of forfeiture was one of the fact found by the trial judge on misconduct and that the Court refused to order forfeiture because of the Land Use Act.

I have already dealt with the issue of forfeiture. As to acts of ownership, the trial judge found that plaintiffs were not the exclusive owners as indicated in exhibit B, but at best were joint owners with other members of community. Exhibit B stated

“(ii) That all other land areas occupied by Okan (built and unbuilt) including the area in dispute in Suit No. UHC/38/75 belong to Ogude family of Ikuewhu and Ikuewhu community” and

(iii) That any son or daughter of Okparegbe who wishes to acquire land for development should approach Ikuewhu community through Ogude family of Ikuewhu for permission to do so as was the case in the past”.

In my view, the trial judge was right when he said at p. 306/28-307/2 –

“On acts of ownership: Exhibit B (i.e. the terms of settlement) clearly recognised plaintiffs’ family as at least part owners who previously exercised acts of ownership; and I have said exhibit B binds the 7th – 9th defendants. But even in exhibit B, it would appear that the ownership of the plaintiffs’ family is not absolute in that the ownership is linked with the rest of Ikuewhu which, as has been seen, was founded by Ogude and his two brothers and Ekare.”

This finding is amply justified. There was in addition to his findings that the various acts of ownership pleaded were not proved, evidence that there were other persons occupying land at Okan who were not plaintiffs’ grantees, such as 5th D.W. Chief Edward Ohrorheneda who had rubber plantation and two buildings at Okano 1st plaintiff admitted at page 127/32-33 that he (D.W.5) lived in Okan and has two houses here. He did not say his family made the grants to him. 1st plaintiff also admitted that no member of Ogude family signed the lease to the early Germans; he also agreed that the lease to Edmund Agbowu was signed by Chief Mowain who was not a member of Ogude family. He also admitted that the “only people who were expected to sign the deed were the spokesmen of the five villages” (comprising Okparegbe community). The trial judge also did not find that the land occupied by 5th and 6th defendants was part of Ogude land. So it is clear that the trial judge was justified when he held that the plaintiffs failed to prove exclusive ownership. The learned Justices of Appeal failed to take all these into consideration before they inferred that the plaintiffs proved their right to the exclusive ownership of Okan land contrary to the specific finding of the trial judge. I may add that it is not correct that D.W.1, Matthew Chukwura, the Surveyor failed to relate his plan exhibit C with exhibit A. He did. He said exhibit A covers a smaller area than that shown in his plan (exhibit C).

Bearing in mind the finding of the trial judge that Ogude’s descendants and Eridi descendants made their presence felt at Okan about the same time, it became necessary to show where that boundary is.

Plaintiffs’ counsel in challenging this finding before the Court of Appeal, was recorded as saying that although they gave evidence, they admitted that the features were not shown “because these features are no more on the land as of now.

But these features are here for traditional evidence the question is whether our evidence has credible ….” At page 339, the last two lines, 1st plaintiffs’ counsel said:-

“We are interested not on the whole of Ikan but only a part of it …The grant to Agbowu is not claimed by us. It is not even on our plan (withdraws this contention.”)

His statement indicates that he himself was uncertain of the identity and features of the area of land being claimed by the plaintiff. The Court of Appeal was in error in shifting the onus on the defendants. The court did not even examine exhibit C -appellants’ plan, for the only reason that they, defendants, did not counter-claim for title.

The respondents’ counsel in the Court of Appeal appreciated this point as indicated in particulars VIII ground 4 of the appeal before the Court. It reads:-

”The failure by the plaintiffs to call evidence to identify certain features in exhibit A was a matter of inadvertence or technical hitch.”

The plaintiffs gave evidence of Okan village and Okan market as within the land in dispute. Their case is that they granted part of the land to the Okparegbe community.

The locations of these grants are not shown on the plan. The test for certainty required to prove the boundaries of the land is whether a surveyor can identify the land with the description given in paragraph 11 of the statement of claim and relate it to the survey plan. In my view, a look at exhibit A cannot by any stretch of immagination reasonably be related to or linked with the land described in paragraph 11 of the amended statement of claim. The locations of other alleged grants by the Ogude family were similarly not indicated on the plan. The trial judge found that the whole area described in exhibit A was put in dispute, and that of all the acts pleaded, none except grant to Obukhowo, was proved to have been granted by the Ogude family.

The reasons given by the learned Justices of Appeal in reversing the trial judge, in my view, apart from being misconceived in law, never took into consideration the special and important matters found by the trial judge. Within the Okan land over which the court declared title for the respondents were several persons lawfully in occupation who were members of the Okparegbe communities, including those from other villages in Ikuewhu, Ehiverhe, Ophori, Ekrerhaumu. There were findings that the Okan market was used by the entire Okparegbe community, including the Edmund Bakery. The areas occupied by the 5th and 6th appellants, the trial judge found,were not proved to be part of respondents’ land. Besides, the boundaries between the appellants’ family and other families were not defined including the boundary between the respondents and Ehwerhe people. The order of injunction restrained innumerable persons who were admittedly members of the 7th respondent’s (Okparegbe community) even on the respondents’ admission.

They were and are probably still lawfully on the land by various grants and against whom there was no dispute. More important is the fact that the communities against whom the order was made include families who are members of the Ikuewhu community, whom the trial judge found were co-owners as shown in exhibit B. the terms of settlement, which the respondents relied on at the trial.

All these matters were not taken into account by the learned Justices of Appeal. The order of injunction, against these people, with whom there was no dispute, will result in injustice and might result into chaos. Even if the trial court had found that the respondents were the exclusive owners of the land, which on his findings they were not, I will not make the order of title or an order of injunction.

In the result, I have come to the decision that the Court of Appeal was not justified in reversing the judgment of the trial court in that it failed to take into account the various matters which I have pointed out. The power to make declaration should be exercised sparingly, with great care and jealousy, with extreme caution and with proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making.

See Ibeneweka v. Egbuna (1964) 1 W.L.R. 219, P.C. The circumstances of this case do not warrant the making of the orders.

In the final result, I will allow the appeal and set aside the judgment and order for costs made by the Court of Appeal. The judgment of Oki J., made on the 25th day of January, 1980 is hereby restored. The appellants are entitled to their costs in the Court of Appeal and in this Court.

---

SC.88/1983