Ogbeide Aikhionbare Ohen-eriaria Of Evboriara V. Uyiekpen Omoregie Enogie (1976)

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SOWEMIMO, JSC

The plaintiffs, who are the respondents in this appeal, sued the defendants, the appellants before the court, in Suit No. B/135/75 at the High Court of Bendel State (then known as the Midwestern State) and The Plaintiffs’ claims against the defendants are for:

PAGE| 2   (1) A declaration of title to that piece or parcel of land known as “Evbuoba-Ohen land” at Evbuoba-Ohen village, Benin/Sapele Road, Ward 37B, Benin City District in the Benin Judicial Division. The dimensions and abuttals of which are sufficiently shown in the plan to be filed later. And value of land is £5. (2) The sum of £100 being damage for trespass on the said land in that between September 1971 and 1972 the defendants, their agents or servants broke and entered upon the said land without plaintiffs’ permission. (3) Injunction restraining the said defendants, their agents or servants from further acts of trespass on the said land”.  

On decided authorities, and, this is not disputed by either party, land in Benin is vested in the Oba. Any claim therefore to possessory title must of necessity stem either directly or indirectly from the Oba. It is in the light of this that this case assumes a peculiarity of its own because the plaintiffs did not trace their title from any Oba of Benin.    The sum total of plaintiffs’ case is that during the reign of Oba Oguola there existed a village known as Eghosa and which name was later changed to Ekae. One Ereghezi, a native doctor carved out an area out of Ekae village for one of the sons of Oba Oguola, and this son later left the area to become Oba Ohen.

A brother of Oba Ohen was later sent to the carved out area and was given the title of an Enogie. 1st plaintiff gave history of ancestry to the first Enogie. The area was stated to be called Evbuoba-Ohen.    On the other hand, the existence of Evboriaria village, (in these proceedings sometimes spelt Evbuorhiarhia) the defendants’ village, is not in dispute. The defendants maintained however that their village extended over both sides of Benin – Sapele Road and that it covered the area which the plaintiffs claimed as Evbuoba-Ohen village.    

The learned trial judge considered the evidence of traditional history of either side and being in conflict rejected that of the defendants on the issue of credibility. He accepted the evidence of traditional history as narrated by the plaintiffs’ witnesses as convincing and described the evidence of 1st defence witness as being full of prevarications, confused, and strangely enough described the old man as being stupid.

PAGE| 3   The other evidence referred to by learned judge is that of the 1st defendant which he rejected because instead of being called as the first witness he was called as the last. He drew attention to the observation of this court in Chief Asiya Ita Effiom Out Ekong v. Benson Okpala (1972) 5 S.C. 177 and cited a passage at page 188 as an authority. On a proper consideration of the facts of that case the learned judge would have seen the basis for the view that in that case it is only the probative value that could be considered in the assessment of the evidence. It was no ground for total rejection.

The learned trial judge then concluded his findings on the traditional history thus:   “On the whole I have come to the inevitable conclusion that the traditional evidence given by the witnesses who testified on behalf of the plaintiffs is far more convincing and reliable than that of the defence. I accept the evidence of Osawaru Uwadiae (2nd P.W.), Uyiekpen Omoregie (1st plaintiff), Simeon Osaghae (2nd plaintiff) and find as a fact that the village formerly known as Evbuoba-Ohen was an off-shoot of where Oba-Ohen was born and that it began to bear that name when his younger brother Uhewemwen settled there and became an Enogie. In accepting the traditional history of the plaintiffs and rejecting that of the defendants I have borne the following facts in mind. Firstly, I should not use double scales in weighing the evidence of both parties. I watched the demeanour of each witness and the confident manner in which he answered questions”. (Underlining ours).    

The learned trial judge with some justification referred to a portion of the judgment of the Privy Council in Kojo II v. Bonsie & Anor (1957) 1 W.L.R. 1223. We are of the view that what was held in that portion of the judgment was that the demeanour of witnesses in the circumstances of that case, as in this case, is not a proper guide in deciding the truth of traditional history but the learned trial judge in spite of this did the opposite in his consideration of the defendants’ version of their traditional history. We think that the learned trial judge stopped short of what is stated to be the correct approach which a court should adopt in considering traditional history.

We refer to the portion of the judgment of the Privy Council at pages 1226 to 1227:   “Their Lordships notice that the judges in the appeal courts, who were in favour of upholding the decision of the Asantehene’s B Court, did so on two grounds: first, that it was a decision of fact depending on the demeanour of the witnesses and almost inviolable on that account: second, that on a review of the evidence it was the correct decision.   So far as the first ground is concerned, their Lordships do not think it was the correct approach to this case.

Their Lordships notice that there was no dispute as to the primary facts, that is, the facts which the witnesses actually observed with their own eyes or knew of their own knowledge in their own lifetime. The dispute was all as to the traditional history which had been handed down by word of mouth from their forefathers. In this regard it must be recognised that, in the course of transmission from generation to

PAGE| 4   generation, mistakes may occur without any dishonest motives whatever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable”. (Underlining ours).    

The learned judge was in error in deciding the issue of traditional history on the demeanour of the witnesses before him. The 1st plaintiff claimed to be the Enogie of Evbuoba-Ohen village tracing his ancestry directly to a royal prince of Benin. He also claimed that the Oba of Benin knew him and recognised him as Enogie. He referred to his regalia as evidence of his title. The Oba of Benin gave evidence in this case. His evidence is very material and it reads:   “I live at the Palace and I am the Oba of Benin. I know the plaintiffs. I met them before when they brought a complaint to me. I also know the defendants. The 1st defendant is the Ohen-Oriaria of Evboriaria village. The plaintiff brought a complaint claiming ownership of a village called Evbuoba-Ohen and the claim was opposed by the defendants. I promised to go into the matter, and had not done so before I heard that the case was in court. I cannot tell all the villages in Benin Kingdom. I have never heard of Evbuoba-Ohen village since I came on the throne.

I did not know the plaintiffs until the time they brought their complaint and claimed to belong to Evbuoba-Ohen village and I had no time to look into it before they went to court. I do not know the father of 1st plaintiff. I do not know whether Exhibits ‘E’ – ‘E3’ were given to 1st plaintiff’s forefather by Oba-Ohen. It was the 2nd and 3rd plaintiffs who first brought the complaint to me and were later joined by 1st and 4th plaintiffs, but before I had time to go into the matter, I was informed that the case had already gone to court. I have never had any experiene of an Enogie delegating a relation to act for him during his absence from home. It was when I asked 2nd and 3rd plaintiffs to bring the Enogie of their village that they brought the 1st plaintiff.   XXD by Longe: Exhibit ‘E’ (an Ada) is not one of the things we give to an Enogie.