Madam Imachi Ekine Bobmanuel & Ors. V. Elder Isaac Gillis West & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
GALADIMA, J.C.A.
This is an appeal by the defendants against the judgment of T.K. Osu (J) sitting in Port Harcourt Judicial Division of Rivers State High Court.
The suit originated from Degema Judicial Division by relevant order made thereof, same was transferred and concluded in Port Harcourt Judicial Division.
The dispute rages around a parcel of developed land known as Okponnaolu Gate situate in Tom West Compound in Buguma in Asari Toru Local Government Area of Rivers State. At the lower court, the respondents and the appellants were plaintiffs and defendants respectively. For ease of reference, parties shall hereinafter be referred to as “appellant” and “respondents” respectively. The plaintiffs’ case, from available facts in the printed record of appeal is that they are children and grand-children of a man called Okponnaolu, whose brothers are Wariboko, Tamuno and Dagogo, all of whom belong to a family known as Tom West Compound of Buguma. The said Tom West Compound is part of a group of houses known as Elebike Group of Houses in Buguma.
The plaintiffs claim that the defendants are grandchildren and great grandchildren of Wariboko and that both the plaintiffs and the defendants belong to or are members of Tom West Compound. The traditional history led in evidence by the plaintiffs is that the property in dispute belonged to the said Okponnaolu and it was Chief Tom West, then head of Tom West Compound that allocated the said land in dispute to Okpannaolu for the latter to build and reside thereon and that the allocation was made to Okpannaolu alone. The plaintiffs through PW1. (i.e. 4th plaintiff) admitted that at the time of allocation, the property belonged to the Tom West Compound headed by Chief Tom West. The plaintiffs, through PW1 further stated that Dagogo, brother of Okpannaolu was his grandfather and that 2nd plaintiff who was 4th plaintiff’s mother was a direct daughter of Dagogo and as such PW1 himself was offspring being children and grandchildren of Dagogo and are therefore members of Tom West Compound. The plaintiffs claim that 1st plaintiff is a direct biological son of Okpannaolu by adoption. They contended that Okponnaolu adopted a woman named Ibitubo as his daughter and gave her to his brother Dagogo, as a wife and that she it was that gave birth to the 2nd plaintiff and the mother of the 3rd plaintiff in the course of Ibitubo’s marriage with Dagogo and that as such the said Ibitubo, 1st, 2nd, 3rd and 4th plaintiffs are entitled to inherit the properties of Okpannaolu.
The plaintiffs claim that the defendants are licensees of the plaintiffs. The plaintiffs’ sole witness on this point was the PW1 who gave evidence that the said license was a customary license. He went further to state that Dagogo, his father was a licensee of Okpannaolu in the land in dispute. They claim that in 1967 the original 2nd defendant was granted a portion within Okpannaolu Gate to put up a building but that the grant was revoked and that in 1991, the original 2nd defendant was prevented from carrying out a renovation or reconstruction of a building on the land in dispute while in 1993 and 1994 the defendants sought to prevent the plaintiff from the performance of funeral rites intended for the burial of second Harry West and Fyne Dagogo West both of whom were descendants of and granddaughter of Okpannaolu respectively. The plaintiffs contended that these were acts constituting challenges to the plaintiff’s overlordship of the property in dispute. The plaintiffs therefore sought that it be declared that the defendants are licensees, orders of forfeiture and mandatory injunction.
The defendants challenged that right of the plaintiffs down to their root of title, that is, Okpannaolu, their ancestor. It was the defendants’ case that the original allotment of the land to Okpannaolu was not to him exclusively, but to him and his three brothers jointly and so they as descendants of one of those brothers are co-owners of the land. They also alleged in the alternative that the land belongs to the entire Chief Tom West Family and so the plaintiffs have no right to terminate the defendants’ use of the land as the parties are equally members of the Tom West Family. The defendants contended that when Buguma Town was founded in 1884 the entire landmass in the town was shared among the compounds that are the groups of related families, one of which was Chief Tom West Compound. Out of the area belonging to the Chief Tom West Compound, a parcel of land was allotted by Chief Tom West, Head of the Compound to Okpannaolu who developed the land gradually and positioned the houses to form a gate at the entrance into the premises. Thus, the land when developed earned the name “Okpannaolu Gate.”
Defendants admitted evidence of the plaintiffs that all the houses at the Gate were built by Okpannaolu, who allowed his brothers Wariboko, Dagogo and Tamuno to occupy the other houses he built at the Gate apart from the first one in which he lived with his immediate household. That upon the demise of Okpannaolu his immediate descendants inherited his property and exercised all rights of ownership over the years. It is also the defendants’ case that in 1967 the plaintiffs stopped them from building on part of the land and in 1991 they also prevented the defendants from renovating one of the houses by withholding their (that is plaintiffs’) consent. That on both occasions the parties attended a local arbitration constituted by Chiefs of Tom West Compound, Buguma. On a different occasion the plaintiffs, in evidence of their ownership had permitted one Mr. Soberekon to build on a portion of the land in dispute without any challenge. Despite all these, the defendants who are the descendants of Wariboko, one of the brothers of Okpannaolu, are claiming that they have equal rights with the plaintiffs to the property in dispute.
They seem to be vesting that title on their belief that since they were born and bred on the land in dispute, their grandfather, Wariboko must have been a co-owner of the land. To that extent they are denying their status as licensees of the plaintiffs on the land and are contesting the plaintiffs’ rights as exclusive owners on the basis that this land was allotted jointly to Okpannaolu and his three brothers.
Parties joined issues on their respective claims. The appellants denied the allegations of the respondents. At the conclusion of the trial, learned trial Judge entered judgment for the plaintiffs whereby he declares the defendants as licensees of the plaintiffs. He granted an order of forfeiture against the defendants and decreed a mandatory order compelling the defendants to forthwith vacate the property in dispute.
Dissatisfied with the judgment of the lower court, the appellants appealed to this court. In compliance with the Rules of the Court, briefs of argument including appellants’ reply brief were filed and exchanged by the parties. Learned counsel for the appellants posed the following sole issue for determination:
“The issue for determination in this appeal is whether or not the learned trial Judge was right in entering judgment for the plaintiffs having regard to the pleadings, evidence led, the state of the law and the approach adopted by him.”
On the part of the respondents one issue was formulated for determination of the appeal thus:
“Whether in the circumstances of this suit, the learned trial Judge was right in granting the plaintiffs’ claim.”
In my respectful view, the sole issue raised in the appellant’s brief amounts to the same as question posed in the respondents brief. I shall now deal with this issue. In his submission, learned counsel for the appellants has contended that, in the main, having regard to the evidence led by the parties, the pleadings, the state of the law and the materials placed before the learned trial Judge and the approach adopted by him, the learned trial Judge was in error when he proceeded to enter judgment for the plaintiffs whereby he declared the defendants as licensees of the plaintiffs, granted an order of forfeiture against the defendants and decreed a mandatory order compelling the defendants to forthwith vacate the property in dispute.
That it is the duty of the plaintiff in the land matter (if they want the lower court to hold that the defendants have no right of possession and or occupation of the property) to prove their title and since the defendants claimed title to the same property in dispute, the plaintiffs cannot succeed if they failed to prove a better title than that of the defendants. It is submitted that from the evidence led, the plaintiffs could not discharge the onus of proving a better title to the land in dispute. This voluminous and detailed brief of the appellants necessitates my painstaking attention. I took a lot of time to read through. The whole gamut of the argument of the learned counsel for the appellants on this sole issue is that the learned trial Judge failed in his duty to properly decide the case on the facts presented before him.
That he failed to consider the totality of the evidence led before him and without a proper evaluation of facts led and without properly resolving confliction evidence before him, came to the conclusion that the plaintiffs have proved their case. It is submitted that the erroneous approach of the learned trial Judge in the circumstances hereof, entitles this court to exercise its powers to interfere, evaluate and make appropriate findings. Reliance was placed on Section 16 of the Court of Appeal Act 1976; Jadesimi v. Okotie-Eboh (1986) NWLR (Pt. 16) 264 at page 274B – 275; Meka v. Aniafulu (2005) 13 NWLR (Pt. 943) 668 at 677 – 678. He finally urged this Court to set aside the decision of the Court below and in its stead, dismiss the plaintiffs’ case.
Learned counsel for the respondents while responding to the sole issue submitted that in paragraphs 5.01, 5.02, 5.03 of the appellants’ brief, they are challenging the plaintiffs’ locus standi to prosecute this action as representative of Okpannaolu Family. That in addition to this allegation the plaintiffs are not descendants of Okpannaolu. The appellants are contending that the Okpannaolu family did not authorize the institution of this suit. Reliance was placed on Order 11 rules 7(1) and 8 of the Rivers State High Court (Civil Procedure) Rules, 1987. It is argued that apart from expressing their status on the writ as required by the rules of court, the plaintiffs also obtained the leave of the court. Thus, it is not for the defendants to question the plaintiffs’ capacity when the defendants are not members of the Okpannaolu Family being represented. To buttress this point, the respondents’ counsel rely on the decision of this court in the case of Onyekaonwu v. Ekwubiri (1966) All NLR 33; (1966) 1 SCNLR 55 and Chief Ayomanno v. Ginuwa II (1943) 9 WACA 89.
They also fortify the arguments with the decision of the Supreme Court in Animashawun v. Osuma (1972) 4 SC 200, 214-215.
On the contention of the appellants in their brief that the land in dispute was originally allotted to Okpannaolu exclusively, learned counsel for the respondents referring to paragraphs 9 and 10 of the statement of claim and paragraphs 3(a), (b), (c), (d) and (f) of the Reply to Statement of Defence, submitted this position was confirmed by the respondents in these paragraphs and evidence of PW1 and PW2. Furthermore, that the evidence of PW2, who is the head of the Chief Tom West Compound presided over the Native Arbitration between the parties in 1991 whereat it was conceded that the land was allotted exclusively to Okpannaolu. So also did DW1 and DW2 in their evidence. It is submitted that it is in the exercise of that inheritance the respondents also gave evidence of that exclusive ownership when they prevented the appellants from the use of the land without the respondents’ consent in 1967 and 1991, and permitted the construction of a house by one Mr. Soberekon.
It is finally submitted by the learned counsel for the respondents that the respondents adduced credible and cogent evidence and proved their case on the balance of probabilities. He urged this Court to affirm the judgment of the lower court and dismiss the appeal.
Now, before I come to the sole issue posed for determination of this appeal, I shall first deal with the respondents’ locus standi to prosecute this action. From the records, in their writ, the respondents as plaintiffs instituted this action in a representative capacity (for and on behalf of Okpannaolu Family, Tom West Compound, Buguma (Asalga) against the appellant who defended that action as “For and on behalf of Wariboko Family of Buguma.
In paragraph 23 of the statement of claim, at page 6 of the record the respondents claim against the appellants jointly and severally as follows:
“i) Declaration that the defendants in their occupation of premises within the property known as Okpannaolu Gate in Tom West Compound, Buguma are customary licensees of the plaintiffs.
(ii) An Order of Forfeiture of defendants’ licence upon their challenge of the plaintiffs’ title over the said Okponnaolu Gate as overlords thereof.
(iii) Mandatory Order of Court compelling the defendants to vacate the said premises upon the termination of the licence.
In paragraph 5.01, 5.02 and 5.03 of the appellants’ brief of argument the appellants are challenging the respondents’ locus standi to institute and prosecute this action as representatives of Okpannaolu Family. In addition to their allegation that the respondents are not descendants of Okpannaolu, they are, in effect also contending that the Okpannaolu Family did not authorize the institution of this suit.
This has been part of the defendant’s half-hearted case during trial.
In paragraph 1 of their statement of Defence at page 23 of the record and in evidence of DW1 at pages 63-64 of the record, they questioned the respondents’ locus standi to prosecute the suit. On the writ of summons, as observed above, the respondents made it abundantly clear that they are suing the defendants as representatives of the Okpannaolu Family. They amplified that capacity in their statement of claim in paragraphs 1 and 2 at page 4 of the record. Under the Rivers State High Court (Civil Procedure) Rules of 1987, Order 11 rule 7(1) provides for the requirements for suits brought to Court in a representative capacity as follows:
“7(1) if the plaintiff sues or any defendant counter-claims in any representative capacity, it shall so be expressed on the writ.”
This is so expressed on the writ by the respondents. In further compliance with the rules of Court, the respondents obtained leave of the lower court vide a motion-exparte filed together with the writ of summons on 30/5/94 at pages 7-9 of the record, to prosecute the suit in representative capacity. That leave having been obtained from the court below satisfies Order 11 rule 18 of the said Rules if the River State High Court. It provides thus:
“8 Where more persons than one have the same interest in one suit, one or more of them may, with the approval of the Court, be authorized by the other persons interested to sue, or to defend in the suit for the benefit of or on behalf of all parties interested.”
This is the clear position of the law. The appellants’ contention that the respondents lack locus standi to prosecute this action on the ground that they did not establish their mandate does not represent the position of the law. As it has been shown, apart from expressing their locus on the writ as required by the rules of the lower court, the respondents also sought for and obtained the leave of the court. In Chief Ayomano v. Ginuwa II (1943) 9 WACA 89 at page 93, Graham Paul, CJ. Sierra Leone resolving the difficulty often associated with the action brought in a representative capacity, formulated the rule on the point on the following words:
“It seems to me that on the evidence and on the learned Judge’s findings of fact, there is no reason why he should not have granted the declaration asked for it in the writ to the people who asked for it namely Chief Ayomano and Chief Asan Edwin Omarin, on behalf of themselves and the Chiefs and people of Okpe Clan. There may or may not at some time arise questions as to who is or who is not a member of the Okpe Clan which authorized the bringing of this action, but these questions do not seem to me to arise in this case. The respondents have on the evidence sufficiently identified the people whom they represent under the name of the Okpe Clan with the original owners of land in question. The evidence that they are authorized to bring this action on behalf of the Okpe Clan was uncontradicted unchallenged in cross-examination and accepted by the court below.”
The line of argument is fortified with the Supreme Court decision in Animashawun v. Osuma (1972) 4 SC 200, 214-215 and this court in Onyekaonwu v. Ekwubiri (1966) All NLR 33; (1966) 1 SCNLR 55.
For the foregoing reasons I hold: that the objection of the appellants to the respondents’ authority in this suit is misplaced and misconceived and ought not to be sustained. It is therefore discountenanced.
Now, to the appellants’ contention in the sole issue they raise that the learned trial Judge was wrong in his finding that the land in dispute was originally allotted to Okponnaolu exclusively. The respondents in paragraphs 9 and 10 of the statement of claim, pleaded exclusive grant of the disputed land to their ancestor Okponnaolu and paragraphs 3(a), (b), (c), (e) and 4 of the Reply to Statement of Defence. In this regard, consideration of evidence of PW1, PW2, DW1 and DW2 will be relevant. First, the evidence of PW1 at pages 57-62 of the record. He is the paramount Chief and Head of the Chief Tom West Family Compound where the land in dispute is located. He presided over and settled the dispute between Okponnaolu Descendants and Waribolo Descendants in 1991. He concluded his testimony at page 58 of the Record thus:
“We went to locus to see the area in dispute.
Okponnaolu is the owner of the gate and he has a building. Chief Enoch is a descendant of Dagogo.”
DW1 conceded to the fact that PW1 as at 1991 the “Head Chief of the Tom West Compound” and he headed the panel of customary arbitration that comprised several chiefs. DW2 at pages 82-82 lines 30-34 confirmed Kalabari custom which allows the exclusive owner of the land to name same after himself and could build houses on thereon.
The averments in paragraph 10 of the statement of claim at page 29 of the record and paragraph 6 of the Statement of Defence and paragraph 65 of the Reply to Statement of Defence at page 37 of the record all add to the proof that Okponnaolu did not move over the Okponnaolu Gate at the same time as his brothers. But only moved in with members of his immediate family after building his first house. It is averred that he only “invited his bothers, Tamuno and Dagogo to live with him therein after constructing some other buildings.” In exercise of that inheritance, the respondents also gained exclusive ownership when they prevented the appellants’ use of the land without the consent of the said respondents in 1967 and 1991, and permitted the construction of a house thereon by one Mr. Soberekon. The 1967 episode is covered by the evidence of PW 1 at pages 46-47 and corroborated by DW 1 at pages 71-72 of the record.
The grant made by the descendants of Okponnaolu to Soberekon to build on a portion of the land was admitted by DW1 under cross- examination at page 80 lines 3-10 of the record. Some weakness noticed in the appellants’ defence was their assertions and allegations which the respondents term as “contradictions.” First, on the ownership of the disputed land the appellants have asserted that it belongs to the Chief Tom West Family and so they are members of that family and are entitled to its enjoyment as co-owners. See para. 3, 3(a) and 5 of the Statement of Defence at pages 25 and 29 of the record, and the testimony of DW1 at page 67 lines 4-6 of the record.
In what appears a contradiction to their earlier allegations, in another breath the appellants also allege that the land in dispute was allotted jointly to Okponnaolu and his brothers called Warioko, Dagogo and Tamuno; thus the four bothers being co-owners. See paragraph 3(e) of statement of defence pages 27-28 and evidence of DW1 at page 67 lines 26-32 of the record. I am yet to fathom out any contrary reason or explanation for the naming of the land by Okponnaolu exclusively after himself and why only he built all the houses on the land without being challenged. It is however notable facts that at the customary arbitration headed by the Head Chief of the Chief Tom West Compound, the point that the respondents were wrongly claiming the land belonging to their Compound or Family was not raised by the appellants. Rather the arbitration therefore found as a fact that the land was allotted exclusively to Okponnaolu. This decision or finding by the panel was ever challenged.
From their evidence, the respondents established two principal ways by which the exclusive ownership of Okponnaolu has existed since the early days of the founding of Buguma. Firstly, the traditional naming of the land after Okponnaolu as the original exclusive owner. DW1 collaborated the case of the respondents that it is the customary practice of the Kalabari people as applicable in Guguma to name land or real property after the original owner; as it has been done in this case. It is also in conformity with the native practice of the people of the community where the land is developed and the entrance is designed like a gate, to name the premises after the owner. Secondly, the second principal mode is the challenge or refusal of the respondents to allow the 2nd defendant to build a house on a part of the land in dispute in 1967. See evidence of PW1 and that of DW1 under cross-examination and paragraph 17 of the statement of claim. Again in 1991, the 2nd defendant attempted to renovate one of the houses at the gate, which he was occupying; the respondents successfully challenged him from doing so by complaining to the Chiefs of Tom West Compound. He was subsequently restrained from carrying out the renovation. Evidence of PW1, PW2 and DW1 under cross-examination confirmed that.
The appellants faulted the judgment of the lower court on the basis of the finding made by the court that the appellants are customary licensees of the respondents in their occupation of the land in dispute. This issue was raised in paragraphs 5.04, 5.06 and 5.08 of the appellants’ brief. The respondents’ claim on this point in the pleadings are in paragraphs 21, 22 and 23 of their statement of claim at page 6 of the record; and evidence of PW 1 found at pages 47-48 of the record. The claim is made jointly and severally against all the appellants. Regardless of this facts, the appellants in paragraph 5.04 of their brief sought to distinguish the 3rd and 4th appellants from the other appellants and argued that they cannot be licensees of the respondents on the land in dispute. The learned trial Judge has not minced words in his findings that the appellants are licensees of the respondents at Okponnaolu Gate the land in dispute. Like his finding in the ownership of the land ascribed to the respondents after a perusal of the evidence made available, I must also allow his finding that the appellants are licensees to stand in that the evaluation of the supporting evidence was sound, fair and just. This is what the learned trial Judge had to say in his judgment at page 183 of the record:
“What appears to be overriding issue is whether the defendants are licensees or not. That the defendants as licensees have behaved or challenged the authority of plaintiffs in several ways so they (plaintiffs) want to determine the defendants’ stay in the Okponnaolu Gate. These acts were:
(1) The 2nd defendant trying to erect a building in the gate in 1967 without their consent.
(2) 2nd defendant trying to renovate the house that he was living in, in 1991 without their consent.
(3) That second Harry died in 1993, who was a descendant of Okponnaolu family, the defendants used brute force to restrain the plaintiffs from funeral arrangements by preventing the corpse from entering into the gate and Mobile Police had to be invited.
Madam Fyne Dagogo West who was a grand daughter of Okponnaolu died on 30/1/94 and she lived in one of the houses built by Okponnaolu, the defendants refused the plaintiffs to renovate her house and summoned the plaintiffs before the Buguma Council of Chiefs, claiming that they (the defendants) are co-owners of Okpannaolu’s Gate and the plaintiffs had no right to renovate any house without their consent.”
Learned trial Judge further evaluated and accepted the evidence of PW1 and PW2, DW1 and DW2 who stated that according to Kalabari custom where a licensee acts contrary to the rights of the overlord the overlord can terminate the licence. PW2’s testimony was that Tom West who gave the gate to Okponnaolu’s brother did not live in Okponnaolu Gate before they died.
He relied on the evidence of PW1, which was corroborated by that of PW2 and DW2, particularly to the effect that where the licensees or tenant challenges the title or ownership of the overlord’s right over the property, the overlord has the authority to determine the licence or tenancy.
It is now trite and followed principle of law that the evaluation of evidence and ascription of probative value to it are the primary functions of the trial court that saw, heard and duly assessed the witnesses. When such functions are duly and correctly discharged by the trial court, an appellate court has no business of substituting its own views for that of the trial Court. See Akinloye and Anor v. Islzola and Ors. (1968) NMLR 92; Woluchem v. Gudi (1981) 5 SC 291 and Bashaya v. The State (1998) 5 NWLR (Pt. 550) 351 at 370.
However, an appellate Court may interfere with the finding of fact of a trial court where the latter failed to properly evaluate the evidence or make a proper use of the opportunity of seeing or hearing the witnesses at the trial or where it has drawn wrong conclusions from the accepted evidence or where it findings are shown to be perverse.
See Ojo v. Governor Oyo State (1989) 1NWLR (Pt. 95) page 1 and Eholor v. Osayande (1992) 6 NWLR (Pt. 249) 524.
I have myself carefully examined the evidence of the parties to the disputed land and the findings of the learned trial Judge on it.
The respondents have adduced sufficient, credible, consistent evidence establishing the source of their title to the land. With the abundance of evidence proffered by them in proof of their claim to the land, the learned trial Judge made his findings. I am unable to find any fault in them. The case of the parties was painstakingly examined. This appeal revolves primarily on issues of fact. There is nothing to show that the findings in the facts are erroneous.
Accordingly, I must therefore resolve the sole issue for determination in the affirmative by holding that the learned trial Judge was right in granting the respondents’ claim.
On the whole the appeal fails. It is accordingly dismissed. The decision of the lower Court is hereby affirmed with costs of N30,000.00 assessed in favour of the respondents.
Other Citations: (2008)LCN/2644(CA)
