Patrick Ogbu & Ors V. Fidelis Ani & Ors (1994)
LawGlobal-Hub Lead Judgment Report
BELGORE, J.S.C.
The plaintiffs at the trial court are now the appellants before this court. They won their case at the trial Court but the Court of Appeal sitting at Enugu reversed this victory of theirs and thus the appeal to this Court. The plaintiffs are inhabitants of Akpugo in the former Nkanu District of Eastern Nigeria. they are now in Enugu State. The defendants who also inhabit the same district are from Oruku. The suit at the trial Court and up to now is in a representative capacity for each party. The plaintiffs filed a plan of land which is Exhibit A at trial court. Exhibit A is a very detailed and clear plan.
It has got three distinctive portions, to wit, the area verged pink which is to the immediate North of River Inyaba, and North of this is a very extensive portion verged yellow. There are the boundary neighbours of the map – the Akporga Nike land at the extreme west and to the far North of the plan. There is also the land of Owo people to the North East and to the East is the land of Amechi Oba. The area verged pink on the plan (Exhibit A) is the one in dispute between the parties. The plaintiffs in their statement of claim, particularly in paragraph 4 thereof, averred that about 140 (one hundred and forty) years before they sued the area verged pink was granted by the owners to them and have since been exercising maximum acts of ownership thereupon. It is pertinent the paragraph 4 of Statement of Claim be set out, viz:
“About 140 years ago the people of Akporga Nike granted to the people of Akpugo the parcel of land verged pink in the Plan No. P.0./E21/77 in perpetuity under Customary Law. And consequent upon the said grant the plaintiffs and their ancestors before them took possession of the said land and have been exercising maximum acts of ownership and possession over the said land by farming and living thereon, by reaping the economic trees on the land and by fishing in the lakes on the land. The plaintiffs also have some of their jujus on the land”.
According to paragraphs 5 and 6 of the Statement of Claim, the defendant had in 1971 in a suit No.E/161/7l brought all action against the plaintiffs claiming the same area as theirs absolutely and tendered a plan No. ENC/3/72 as Exhibit 7 (in this case tendered by present appellants at trial Court as Exhibit G). In that same suit the present appellants filed their own plan tendered therein as Exhibit 8 (Now Exhibit B). Because the present respondents as plaintiffs in that case never proceeded further with the case it was struck out for want of prosecution on 20th January, 1976.
The second day, i.e. 27th January, 1976 the present respondents, acting in concert broke into the land in dispute and committed various acts of vandalism. Members of appellants community of Akpugo were injured, and crops were destroyed. The plaintiffs/appellants call the disputed land “Agu Efi”, the respondents call.
“Oruku land” or “Otorojo”. The plaintiffs’ claim therefore is for damages for trespass and order for injunction against the defendants, their servants, agents from entering or trespassing or remaining on the disputed land or doing anything to vitiate the rights or possession of the land by the plaintiffs.
The respondents as defendants deny paragraph 4 of Statement of Claim and further averred that a Court order of 8th March, 1946 as a result of a case titled Idodo Native Administration v. Akpugo all Akpugo houses on Agu Efi should be destroyed. The said order is Exhibit D produced from National Archives, Enugu. The document, Exhibit D reads:
“In pursuance of case No. 6/46 Idodo Native Administration v. Akpugo whereby the said Native Administration ordered that all Akpugo houses on Agu Efi be destroyed by 18th day of January.
- We hereby issue all Order of Court for the Native Administration to destroy all houses standing on above land through noncompliance with the case No. 6/46”.
The defendants/respondents though alleging the above quoted document was a Court order, the proceedings on which the order resulted, and the judgment thereof were not pleaded nor produced in Court. Also this brief document cannot be said to be a matter involving the respondents, even though the appellants who are inhabiting Akpugo might possibly have been affected by it. In the absence of any certification and any link of respondents the trial court would not have rightly attached any weight to the document.
However, a most revealing part of respondents’ case in paragraphs 5 and 6 of Statement of Defence admitted striking out of their suit and that they entered the disputed land though denied any act of vandalism. The defendants/respondents averred that Akporga Nike people through whom the appellants claim their right to possession could not have owned the land as awbias of Iji Nike. “Awbia” is all, outcast or “Osu” who could not in Ibo Customary law own land or dispose of land and that the appellants could not have derived any title or possession through them at the time of the alleged grant to them.
Apart from Exhibit A which appellants as plaintiffs tendered, the respondents despite their pleading never tendered any plan. Rather the plans Exhibit Band (supra) were tendered by the appellants as plans in the previous suit struck out. The alleged Intelligence Reports of colonial District Officers, Mr. H.J.S. Clark and Mr. S.P.L. Beaumont pleaded in paragraph 12of Statement of Defence were not tendered. Similarly, the maps and plans pleaded in paragraph 20 of Statement of Defence never surfaced at the trial. Trial Judge therefore in a reasoned judgment found for the plaintiffs/appellants and granted all their prayers. In coming to his decision, trial Judge, Okadigbo J. found inter alia as follows:
“It is clear that in determining which of the two parties has the title to the land in dispute I have no difficulty in holding that the plaintiffs have the title. In this connection I would like to state that I accept and believe the evidence of P.W. 2, P.W. 3, P.W. 4 and P.W. 5 to the effect that the Akporga Nike people the owners of the radical title to the land in dispute some 140 years ago granted the land in dispute to the plaintiffs and that thereafter the plaintiffs went into exclusive possession. I may observe also that the failure on the part of the defendants to show how they came into possession of the land in dispute is fatal to their case”.
He further held;
“In short, I prefer and accept the evidence of the plaintiffs to that of the defendants with particular regard to how the parties came into possession of the land in dispute. I am satisfied that the Akporga Nike people some 140 years ago granted the land in dispute (verged pink in Exhibit A) to the plaintiffs and that the plaintiffs thereafter went into exclusive possession. Having held that the plaintiffs have established their exclusive possession to the land in dispute I am satisfied that they are entitled to institute this action claiming damages for trespass”.
The defendants/respondents then appealed. At the Court of Appeal; the decision of the trial court was set-aside. The lead judgment of Macaulay, J.C.A. (Ikwechegh, JC.A. and Katsina-Alu, J.C.A. concurring).
What is clear is that the Court of Appeal went deep, even deeper than the trial Court on matters of fact. For example Court of Appeal held inter alia as follows:
“After hearing evidence on the part of the plaintiffs in proof of their title, the learned Judge apparently came to this conclusion, inter alia, that” I would like to state that I accept and believe the evidence of P.W. 2, P.W. 3, P.W.4 and P.W. 5 to the effect that the Akporga Nike people, owners of the radical title to the land in dispute, some 140 years ago, granted the land in dispute to the plaintiffs, and that thereafter, the plaintiffs went into exclusive possession.” This finding is obviously in conflict with, if not at odds, with the Judge’s other findings, one of which is that, “both parties were on the land claiming possession to themselves, and yet disputing the charge of trespass” levelled at each other. How did the plaintiffs prove the grant to them by the Akporga Nike people 140 years ago Where is the evidence that it was thereafter that they went into exclusive possession (italics mine)
If they have proved the grant, how have they also proved acts of such possession, long and positive enough within the principle of Ekpo v. Ita Have they proved that the defendants have not only admitted their title as flowing from the radical title of their donors, but also an admission of that grant which they have sought to show in the evidence of P.W. 2 – P.W. 7 Is this an admission within the ambit and intendment of See. 74 of the Evidence Act as expounded in Okparaeke & Ors v. Egbuonu & & Ors 7 WACA 73 to show, as the Judge there held, that the admitted facts in defendants’ pleading,. need not be proved by the plaintiff. If the evidence of P.W. 2 and P.W. 3, the only indigenes of Akporga Nike, is the basis of the Judge’s decision, what in fact did they say, not only as witnesses but as grantees, not only about the plaintiffs title, but of the grant itself If there was indeed a grant, why was it ever necessary at all to call as witnesses, P.W. 2, P. W. 3. as they did Why were the Akporga Nike people not parties to this suit Are the defendants/appellants justified in raising this point in their brief of argument ”
Further Court of Appeal held:
“The position is very different today, and sales and other forms of alienation for value are commonplace. To this extent, if only under pressure for the freedom of alienation, the Court now tend to lean over backwards to accommodate the modern trend, how that land can be alienated. either under native law and custom, or by deed or conveyance in English form. When in doubt, the court examines the transaction from both law systems to see whether the formalities of either machinery, have been complied with. (See Cole v. Folami (1956) SCNLR 180; (1956) 1 FSC 66: Minister of Lands and Housing, Western Nigeria v. Oba (1965) NMLR 164. In most customary systems, the central attribute in this type of transaction is notoriety.
coupled with other customary incidents e.g. like the payment of tributes, pledge of self for personal labour, etc. After such a long passage of time, what, on the pleadings and evidence led, was the nature of this grant made to the respondents 104 years ago What was the evidence led to prove this grant What actually was the plaintiffs’ pleading on this vital matter of grant and did they prove it
Court of Appeal in actual fact dwelt with facts more than the trial court and the lead judgment in particular, going inordinately longer than the evidence before trial court and thereafter went on conjecture. The judgment stated further:-
“I have already cited the case Esiaka v. Ohiasogwu above, and my understanding of the case leads me to hold that the Akporga Nike people who refused or failed to intervene when their title was involved, but instead were, content to stand-by and watch the fight, may well have had something to hide in the previous encounter(s) leading to or away from the Hill Enquiry. It would not also entirely surprise me, if that was not the reason, or one of them, why they were not anxious themselves to plead Plan AS: 31 in the light of the reported case involving Akpugo people in Obunaw – Akpuo people v. Akpenwfu people 20 NLR 135. This was a case, the verberations of which went to WACA where the questions raised therein finally ended up in the light of my researches into that other case involving the Obunaw – Akpugo and Akpanwfu people”
The judgment of Court of Appeal had been influenced by the belief that the case for defence had not been considered by trial Court and this led to the wide and far reaching research into the evidence at trial Court and making a finding of witnesses not before them.
In the appeal now before this Court the appellants’ brief of Argument formulated the following issues for determination
“(a) Was the Court of Appeal right in introducing into the case matters which were not properly before it, to wit:
(i) questions relating to the proceedings in Mr. Hills inquiry and the plans tendered therein;
(ii) the proceedings and the judgment in Suit No. E/24/52: Ohunow Akpugo People v. Akpenufu People (20 NLR 135.)
and on relying on those matters in coming to its decision
(b) Was the Court of Appeal right in allowing the allegation that the judgment of the High Court in the above case was written on scraps of paper, an allegation which was not proved and the allegation that the trial Judge was hostile to the defendants, an allegation which was not only not proved but was abandoned by the defendants/respondents at the hearing of the appeal, to affect its judgment in the case
(c) Was the Court of Appeal right in raising suo motu the issue here-under set out and on relying thereon for its judgment without giving the plaintiffs/appellants the opportunity to address it on the said issues:
(i) alleged admission by the plaintiffs-appellants of paragraph 21 of the statement of defence and the evidence of D.W.8.
(ii) the method and the incidents of the grant of the land in dispute to the plaintiffs/appellants.
(iii) interpretation of the word “plaintiffs” in relation to the evidence of P.W.S 2, 3, 4 and 5 and the judgment of the learned trial Judge as to the grant of the land in dispute to the people of Akpugo.
(d) Was the Court of Appeal right in holding that:
(i) the evidence of the plaintiffs/appellants in proof of the grant for the land in dispute to them was in conflict with their pleadings
(ii) it was necessary for the plaintiffs/appellants to have filed a reply in the case
(iii) if the plaintiffs/appellants proved the grant of the land in dispute to them they should also have proved their “acts of possession, long and positive enough within the principles of Ekpo v. Ita”
(iv) Akporga Nike people, the grantors of the land in dispute to the plaintiffs/appellants should have been parties in the case
(v) the plaintiffs/appellants’ case should have been dismissed on the pleadings
(e)(i) Was the Court of Appeal right in reversing the decision of the learned trial Judge on the credibility of the defendants/respondents witnesses, D.W.S 2, 3, 4, 5, 6 and 8 whom it never saw or heard give evidence and in accepting as a matter of course the evidence of the said witnesses as true
(ii) Was the Court of Appeal right in setting aside the judgment of the learned trial Judge as perverse
(f) Was the Court of Appeal right in accepting as established facts matters set out in the defendants/respondents’ brief whereas evidence on those matters were rejected by the learned trial Judge
(g) Did the Court of Appeal properly direct itself on the questions of law and fact which arose in the case, the evidence adduced therein and the proceedings and the judgment of the trial Court
Leave to argue an additional ground of appeal:
At the hearing of the appeal. the plaintiffs/appellants will apply to the Court for leave to argue an additional ground (11).
The proposed additional ground of appeal is as follows:
(11) That the judgment of the Court of Appeal is against the weight of evidence”.
As against these issues, the respondents formulated their own issues for determination as follows:
“The respondents say that the questions for determination formulated by the appellants are rather prolix and submit that the questions for determination are:
a) Whether the Court of Appeal was right in holding the view that the plaintiffs had not proved their traditional history which was to the effect that the people of Akporga Nike made the grant of the land in dispute to them.
(b) Whether the Court of Appeal was right in holding the view that the plaintiffs had not established that they were in exclusive possession of the land in dispute ..
(c) Whether the Court of Appeal was right in holding the view that the trial Court had not properly evaluated the evidence of the witnesses that had testified in the case.
(d) Whether the issues raised by the plaintiffs in their complaints against the Court of Appeal judgment are maintainable”.
To my mind both parties appear to follow different patterns in their issues and this has been informed in no small measure by the confusion generated by the method applied in deciding the case in Court of Appeal. The appellants rightly adhered to the material evidence founded upon at trial Court, but respondents prefer to re-emphasise the findings of Court of Appeal. The Court of Appeal made a mountain out of the evidence of D.W. 8, Nwatu Okenwa, who was alleged not to have been crossed-examined but was fully cross-examined during trial. There was also ample evidence of the land in dispute as pleaded by plaintiffs/appellants in paragraphs, 3, 4, 6 and 7 of Statement of Claim and the testimonies of P.W. 2, P.W. 3 and P.W. 4. Court of Appeal made issue, suo motu of the people of Akporga Nike not being joined as parties as plaintiffs to claim that they had the radical title to the land in dispute. The evidence of P.W. 8 was surely in conflict with the Statement of Defence. The defendants/respondents pleaded several documents but none surfaced as Exhibits in trial court. This witness was more evasive than forthright and trial Court never had reason to believe him.
This Court has on several occasions warned against interfering with conclusions of trial Courts on facts. Trial Court has many advantages a Court of Appeal never has. It sees the witnesses. hears them and assesses their demeanour and makes findings in line with what in law is admissible.
It is the trial Court that can assess the veracity of a witness before it .Onnoha v. State (1989) 2 NWLR (Pt. 1(1) 23. It is not the function of the appellate Court to interfere with the findings of trial court on facts. There are however exemptions to this rule. If findings is not supported by evidence that finding shall be set aside by appellate Court: also when the finding is supported by evidence but that evidence is by law not admissible or the finding is perverse it will be set aside by appellate court. (See Chukwueke v. Nwankwo (1985) 2 NWLR (Pt. 6) 195; Eghase v. Oriareghan (1985) 2 NWLR (Pt. 10) 884: Ajuwa v. Odifi (1985) 2 NWLR (Pt. 9) 71 0; Oghechie v. Onochie (1986) 2 NWLR (Pt. 23)484; Aghonifo v. Aiwercoba (1988) 1 NWLR (Pt. 70) 325. What has occurred in this case is that trial court, after meticulous assessment of evidence and the facts of possession found that plaintiffs had possession and were placed in possession for over one hundred years and that the present defendants/respondents were trespassers. The finding has been amply supported by evidence and some defence witnesses did not give cogent evidence to disturb this finding. The evidence as to owners of radical title to the land giving rise to appellant right to possession was clearly presented to trial Court. The respondents never in the pleadings adverted to how they had any title to the land or how they acquired any title to it. The findings of fact by trial Court were not perverse and Court of Appeal was in error to have set them aside. Coker v. Oguntola (1985) 2 NWLR (Pt. 5) 87; Ezewani v. Onwordi (1986) 4 NWLR (Pt. 33) 27: Ekwunife v. Wayne (WA) Ltd. (1989) 5 NWLR (Pt.122) 422.
I find great merit in this appeal for Court of Appeal was grossly in error to interfere with the findings by the trial Court. I therefore allow this appeal and set aside the decision of Court of Appeal delivered at Enugu on 8th day of December, 1987. I restore the decision of trial High Court dated 27th day of March, 1981. I award N500.00 as costs in the Court of Appeal and N 1,000.00 as costs in this Court in favour of plaintiffs/appellants against defendants/respondents.
SC.230/1989
