Ojeamiren Ojehomon V. Albert Ojehomon & Ors (1993)

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JAMES OGENYI OGEBE, J.C.A.

Before the High Court of Justice Afuze, the appellant claimed against the respondents in paragraph 46 of his further amended statement of claim as follows:-
“1. A declaration that the Plaintiff is vested with all existing rights and interests to the use and occupation of all that pieces or parcels of land lying situate at Ukhuoro Quarters in Oke New-Site within the jurisdiction of this Honourable Court which pieces or parcels of land are particularly delineated in green, red, brown, blue and yellow in survey Plan No. MWC/1019/82 dated 11th May, 1982, prepared by Surveyor M.N. Chukwurah and consequently entitled to the grant of a Statutory Right of Occupancy in respect of the said pieces or parcels of land.
2. Fifty Thousand Naira as damages for trespass to the said parcels of land.
3. Perpetual injunction restraining the Defendants, their servants and/or agents from committing further trespass to the said parcel of land.”

The pivot of his claim is contained in paragraph 7 of the further amended statement of claim and is reproduced hereunder for ease of reference:-
“7. Chief Ojehomon and several others in the same predicament as himself decided to move out of Oke and found a new settlement in a more open area. In pursuant of this decision they migrated to a virgin land about six kilometers from Oke and acquired each a parcel of land for himself by deforestation. At the hearing of this suit the evidence will be adduced to the effect that by the custom of Ora any native who deforests any part of communal land and settles thereon becomes the owner of the land so acquired.”

The respondents filed a statement of defence denying the appellant’s claim and joined issues with the appellant on his paragraph 7 of the further amended statement of claim in paragraphs 15 and 16 of their own amended statement of defence as follows:-
“The defendants further deny plaintiff’s assertions in paragraphs 7, 8 and 9 of Statement of Claim and state that following the fire incident of 1926, all the people of Okpotore and some affected members of Ukpafikan quarters who were rendered homeless by the said fire, deserted Oke Old Site under the leadership of one Chief Orhuame, the father of the present Ara of Oke to the new settlement now known and called OKE NEW SITE in Ora. At the time, the plaintiff’s father was a civil servant abroad. He had at no time participated in the movement from Oke Old to Oke New Site with the affected people of Okpotoro and some people of Ukpafikan quarters. It was after some years when the people affected were settled in their new settlements and the new Oke Site became attractive that some of the people of other quarters in Oke Old Site started moving gradually.

These were the people of Ukhuoro, Igbele and some of the remaining people of Ukpafikan quarters to Oke New Site. It was during this stage in the year 1928 that Ofeinmi, the father of the 2nd defendant and the most Senior son Ofojehomon Oyuyu after the death of Uade moved his family and his other junior brothers and sisters including Ewan, the father of the 3rd and 4th defendants to put up a mud building at the Oke New Site very close to and facing Sabongidda/Uzebba Old Road which is the building new being claimed by the Plaintiff as his father’s building. The said building was unanimously put up by Ofeinmi, (the father of 2nd defendant), Ewan (father of 3rd and 4th defendants), Uade’s son, Albert (the 1st defendant), Madam Iyinbor Ojehomon and Madam Ilokoguare Ojehomon.

16. When the walling of the house was completed up to the level required by Ofeinmu, Ewan, Albert, Madam Iyinbor and Madam Ilekeguare. Ewan, the father of the 3rd and 4th defendants went and met the Plaintiff’s father then working at Abraka and requested him to contribute to the setting up of the building. In response, the Plaintiff’s father contributed corrugated roofing sheets to Ewan with which the roofing of the house was made. Ofeinmu, Ewan, Albert, Madam Iyinbor and Madam Ilekeguar unanimously contributed to the purchase of cement with which the house was plastered. The said house has all along been jointly owned and occupied by members of Ojehomon Oyuyu family till today.”

On the facts before the trial court, certain issues were not disputed. The appellant and the respondents were descendants of one grand father Ojehomon Oyuyu. They had their original home in a place called Oke Old Site. A fire disaster drove the family away from the old site in the year 1926. They then moved to a new site about 6 kilometre away in 1928. At that time, the appellant’s father through whom he is claiming the property was living in Benin. He was not part of the family members that physically moved from the old site to the Oke New Site. A large house was built in Oke New Site. According to the appellant his father deforested a virgin land and built a house on the disputed land by sending materials homewhile his two sisters supervised the building. The respondents on the other hand, claimed that the building was the joint responsibility of all members of the family which put hands together to develop the family land.
The learned trial judge reviewed the evidence given by the parties and came to the conclusion that the appellant had not proved his title to the land and dismissed his claim in the following words:-
“The plaintiff had only given evidence of his right to his “father’s property” under customary law of inheritance but gave no evidence at all of the title of his father as pleaded in paragraph 7 of the Further Amended Statement of Claim. He should have done more than he had done.

In the circumstance this action is dismissed.” It is against that judgment that the appellant has appealed to this court on one original ground of appeal and with leave of court, 4 additional grounds of appeal. Out of these grounds of appeal, 5 issues for determination were settled in the appellant’s brief of argument as follows:-
“1. Whether from the state of the pleadings filed and exchanged between the parties and the evidence adduced before the Court, the learned trial judge was right in taking the view that there was no evidence of deforestation of the land in dispute and of ownership of the land by deforestation under Ora Customary Law?
2. Whether the learned trial judge was right in holding that the building in question was the joint responsibility of the family of Ojehomon?
3. Whether evidence of contribution to the building of house per se is sufficient to constitute such building or property a family property within the concept of ownership of family property under Ora Customary Law?
4. Was the judge right in treating the evidence of PW2 and PW3 as unreliable, or put differently.
5. Did the learned trial judge adequately and correctly evaluate the evidence adduced before the court?”
The respondents filed their brief or argument in reply to the appellant’s brief of argument and formulated only one issue for determination thus:-
“Whether the Appellant by the evidence tendered at trial had proved his father’s radical title to the parcels of land in dispute by deforestation under Ora Customary Law having regard to the settled state of the pleadings.”

Having carefully examined the issues formulated by both parties, the only issue that arises for determination in this appeal is the first issue formulated by the appellant which is more or less the same thing as the only issue formulated by the respondents. I shall therefore deal with this appeal on the basis of that sole issue.

The submission of the learned counsel for the appellant on this issues is that the trial court was wrong in taking the view that there was no evidence of deforestation and of ownership of the land by deforestation adduced before him having regard to the pleadings filed and exchanged and the evidence led by appellant in support of this case. He said that the appellant’s case was that his late father Chief Francis Godfrey Ojehomon required the land in dispute when it was a virgin land and deforested it in accordance with Ora Customary Law. The father moved along with other migrants to found a new place called Oke New Site. He then built a house on the land and used the rest of the land for farming. The father was away from home but sent building materials to his elder sisters called Okhuokhimeti and Iyinbor to supervise the building for him.

In the learned counsel’s submission the respondents only made a general traverse in respect of the appellant’s averment in paragraph 7 of the further amended statement of claim concerning the deforestation of the disputed land by his father. It followed therefore that the respondents did not join issues with the appellant on the question of deforestation which must be taken as having been admitted. He cited in support the case of Lewis & Peat (MRI) Ltd. vs. Akhimien (1976) FNR page 80.

It was also submitted that the trial court was wrong in holding that the building on the disputed land was the joint property of the family of Ojehomon as the respondents did not lead evidence under Ora Customary Law as to how the joint family property could be acquired. It was finally submitted that the trial court did not do a proper evaluation of the evidence led before it in arriving at its judgment in favour of the respondents as it had no basis in disbelieving the evidence of PW2 and PW3.

In reply, the learned counsel for the respondents in their brief of argument, submitted that the respondents joined issues with paragraph 7 of the further amended statement of claim in paragraph 10, 14, 15, 16, 17, 24, 25 and 26 of their amended statement of defence. There was therefore no question that the issue of deforestation of the disputed land by the appellant’s father was admitted.

It was contended that the burden of adducing evidence in establishing the averment in paragraph 7 of the further amended statement of claim rested squarely on the appellant. In this case the appellant’s root of title is the acquisition of the land by deforestation under Ora Customary Law. This he was unable to prove before the trial court and that knocked the bottom out of his case. Once the root of title was not proved, the subsidiary issue of inheriting the disputed property could not arise. Finally it was submitted that as the appellant failed to prove his root of title, there was nothing else before the court to evaluate and the trial court was right in dismissing the appellant’s claim as that was the only option open to it. Reliance was placed on the cases of Ebohon vs. Anankwenze (1967) FMLR 277 at 282 and MACFOY vs. U.A.C. Ltd. (1960) A.C. 152 at page 160.

The claim before the trial court from the writ of summons and the further amended statement of claim was for a parcel of land in Oke New Site. It was not a claim of a particular building on that land. Although the question of the building on the land dominated the proceedings in the lower court, one should not lose sight of the real claim before the trial court. The appellant’s basis of the claim is the root of title by the deforestation of the disputed land by his father. He pleaded it copiously in paragraph 7 of the further amended statement of claim. The respondents vehemently denied this averment and went on to state their own side of the story in paragraphs 15 and 16 of their amended statement of defence. A clear reading of these paragraphs makes it clear that the argument of the learned counsel for the appellant that issue was not joined on the question of deforestation is not true.

In my respectful view, issue was joined in that regard and it was therefore the duty of the appellant to establish his root of title by good evidence before the trial court. He first of all had to establish that any person who deforested a virgin land under Ora Customary Law had exclusive ownership of such land. He then had to follow it up by establishing that in this particular case his own father deforested the disputed land. Proof of Customary Law is a matter of evidence before a High Court. The appellant did not lead evidence in proof of Ora Customary Law which he was relying upon.

It is pertinent to quote his evidence on this matter of deforestation which is at page 83 of the printed record of the lower court. It reads:-
“In 1926 there was an outbreak of fire at the Old Site and most of the houses at Okpotore old site were burnt down. The others not burnt down were threatened by fire. As a result the inhabitants of Okpotore decided to move away from the old site. Inhabitants of Okpotore quarter also moved. At the material time my father was in Benin City as a postal clerk. He visited Ora as a result of the fire. It was when he visited home that he decided to move from the old site to the New Site. Oke New Site was a virgin land. My father deforested his own portion and acquired. After deforesting, he went back to Benin and then in 1930 while in Lagos, my father decided to build a house on the land. Because my father was abroad he got two of his elder sisters called Okbuokhameti and Iyinbor to supervise the building of the house. When the house was built my father’s sisters who were four lived in the house. Even my uncle lived also in the house.”

Apart from this evidence of the appellant no other evidence was tendered by any of the witnesses in respect of the deforestation of the disputed land. There was evidence that he was born in 1925 which means that the evidence he gave about the events of 1926 to 1930 could not be within his personal knowledge as he was of a very tender age then. That evidence was therefore hearsay or traditional evidence. When that evidence is compared with that of the first defendant Albert Ojehomon who was involved with the physical movement from Oke Old Site to Oke New Site, the difference becomes very clear. For the sake of contrast part of the evidence is reproduced hereunder as follows:-
“I know the family called Ojehomon Oyuyu family of Oke Old Site. The members of that family are now in Oke New Site. I am now the head of Ojehomon Oyuyu family. At Oke Old Site, the family head was Ofeinmu. During the movement from the Old Site to the new site Ofoinmu was still the family head. The family moved from the old site because there was fire that burnt the houses in Okpotore quarter in Oke old site as well as in Ukpafikan quarters of the old site.
The Odionrukpa of Oke old site advised us to move away from the old site. Okpotore only moved but Ukpafikan people did not move only a few people from there moved. No house in Okhuoro quarter was burnt. Ojehomon Oyuyu’s family moved from Oke Old Site in 1928. At the time the houses burnt at the old site I was at Benin. I was sent for and I came to see things for myself. I then informed my uncle. Ofeinmu went to inspect Oke New Site and found it was alright for us and so we moved to the new site from the old site. Before we moved from the old site, we went to clear the site at the new site. After clearing the site we began to build our house there, Ofeinmu, Ewan, Iyinbor, Ilekeguare and myself together with other members of the family build the house.”

The first defendant was speaking from his personal knowledge and involvement in the movement. In other words he gave direct evidence of what happened then.
In a claim for a declaration to statutory right of occupancy to a parcel of land, the burden lies on the plaintiff to prove that he is entitled, on the evidence brought by him, to the declaration sought by him. Generally, the plaintiff has to rely on the strength of his own case and not on the weakness of the defendant’s case. If the burden is not discharged, the weakness of the defendant’s case will not help the plaintiff and the proper judgment which may be given in the circumstance is judgment for the defendant. Such a judgment decrees no title in the defendant, he not having sought the declaration. See Kodilinye vs. Odu (1935) 2 W.A.C.A. 336 at pp. 337 and 338.

From the facts before the trial court, the appellant failed to prove his root of title. Further here, the fact that the respondents had lived in the disputed property with the appellant’s father all these years without trouble from about 1930 up to 1981 when the appellant went to court left the trial court with no option, but to dismiss the appellant’s claim before it.

I see no substance whatsoever in this appeal and I hereby dismiss it. As all the parties are members of the same family and it is in their interest that regardless of the outcome of this appeal, they should settle their differences amicably, I make no order as to costs in this appeal.

Other Citations: (1993)LCN/0163(CA)