Paul Nwazuh Nkwo & Ors V. Iboe (Diokpa Ekpechor Ebu) & Ors (1998)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

By a writ of summons issued in the High Court of former Bendel Slate of Nigeria in the Asaba Judicial Division, the plaintiffs representing themselves and the people or family of Umuagu of Illah sued the defendants in respect of a piece or parcel of land situate between the two streams of Iyi-Oliakwukwo to the north and Iyi-Ukwu to the south of the land. The defendants were sued in a representative capacity for and on behalf of the people or family of Ekpechor of Ebu. Pleadings were ordered, filed and exchanged and subsequently amended. The plaintiffs also filed a reply. In the course of the action in the trial High Court, the original 1st and 2nd plaintiffs died and were substituted by Paul N. Nkwo and Vincent Olidun. By order of the court the 4th plaintiff Onyekagba Ogogba was added. The claims of the plaintiffs as per their amended statement of claim are as follows:

“(i) A declaration of the plaintiffs’ title to the land in dispute excluding the areas verged green and violet (i.e. a declaration of their right of occupancy under the Land Use Act, 1978 No.6 and all laws relating thereto to the land in dispute).

(ii) N5,000.00(Five thousand Naira) being special and general damages for trespass on the said land.

(iii) A perpetual injunction restraining the defendants, their servants and agents from henceforth entering the land in dispute and from committing any further or future acts of trespass whatsoever thereon.

PARTICULARS OF DAMAGES

Special:

(a) 20 Kolanut trees destroyed at N5.00 N100.00

(b) 50 palm trees felled at N10.00 N500.00

(c) 10 Iroko trees felled at N2,000.00

N2,600.00

N2,400.00

General Damages N5,000.00”

At the trial plaintiffs called 10 witnesses whilst the defendants called 3 witnesses. At the close of trial and after addresses by learned counsel for the parties, the learned trial Judge, in a well considered judgment, reviewed the case for both sides and after evaluating same found that the boundary between the parties is the Iyi-Ukwu stream as contended by the defendants and not the Iyi-Oliakwukwo stream as contended by the plaintiffs. He accepted the traditional evidence as given by the defendants and rejected that of the plaintiffs. In the end, he found that the plaintiffs failed to establish their case and dismissed all their claims.

Being dissatisfied with that judgment the plaintiffs appealed to the Court of Appeal. The latter court, however dismissed the appeal and affirmed the findings and judgment of the trial court. It is against that judgment that the plaintiffs, with leave of the court given on 26th January, 1994, have further appealed to this court upon 7 grounds of appeal.

The parties filed and exchanged their respective briefs of arguments. The defendants also filed a notice of preliminary objection to the competence of the appeal on the ground that leave was not sought and obtained before the plaintiffs appealed on grounds of mixed law and fact. On learned counsel, Mrs Ayeni being informed that, infact, the plaintiffs obtained leave of this court on 26th January 1994, she withdrew the notice of preliminary objection. She obviously was not aware that leave was granted by this court when the notice was prepared and filed. The notice was accordingly struck out.

In the plaintiffs’ brief the following questions are formulated for consideration by this court:

“(i) Was the Court of Appeal not obliged to consider and decide the issue of relative strength of the parties’ title to the land in dispute which was properly canvassed before it – and is failure to consider the issue not fatal to the ultimate decision

(ii) Is it not correct as argued before the Court of Appeal that the High Court required of the appellants a higher degree of proof when:-

(a) the respondents did not dislodge the prima facie evidence of appellants’ boundary with Ebu town;

(b) all the evidence relied upon by the respondent to challenge the title proved by the appellants was rejected by the High court;

(c) in spite of the respondents’ admission that the appellants used and farmed on the land in dispute the High Court held that the appellants did not know nor did they farm on the land;

(d) it did not consider the different standards of proof required to establish title based on traditional evidence; and title founded on acts of ownership

(iii) Is the failure of the Court of Appeal to advert to and consider the evidence and pleadings in respect of the appellants’ boundary with Ekpechor (respondents) not fatal to its decision”

All the questions raised above come to one and that is: applying the correct principle as to the burden of proof in a declaratory action, is the court below right in affirming the judgment of the trial High Court

The facts as gleaned from the pleadings and the evidence appears to be these: the ancestor of the defendants called Irakpe and his brother Onyimoji, centuries ago, migrated from Benin and settled in the area of the land now in dispute. Each settled on his own portion of the land and founded settlements. Irakpe’ s settlement is now known as Ebu whilst Onyimoji’s settlement is now known as Illah. The boundary between the two brothers was Iyi-Ukwu stream. Sometime later, the plaintiffs’ ancestors came to the area, drove away Onyimoji’s descendants from their land and occupied same. They have since been on that land. The descendants Of Onyimoji moved to another part in the area to settle. The descendants of Irakpe continue to occupy the land of Irakpe to this day, this includes the land in dispute. They farm the land and put a number of Ibo tenants on it.

It would appear from the pleadings and evidence that what was actually in dispute between the parties at the trial was the boundary between the 2 communities of Illah (of the plaintiffs) and Ebu (of the defendants). It was the contention of the plaintiff that the boundary was Iyi-Oliakwukwo stream. The defendants on the other hand contended that it was Iyi-Ukwu stream. The learned trial Judge on the evidence before him found as follows:

(1) “I do not accept the traditional evidence of the plaintiffs in this case rather I am satisfied with the traditional evidence of the defendants which I prefer to that of the plaintiffs. The onus of proving his case rest squarely on the plaintiffs. See Kodilinye v. Odu 2 WACA 336: Elufisoye v. Alabetutu (1968) NMLR 298 at 302. The plaintiffs have, however, failed to discharge this onus.”

(2) “I believe the evidence of the defendants, including that of Ukala man, DW5, that the boundary between the plaintiffs and the defendants is Iyi-Uku stream and not Iyi-Oliakwukwo.”

The traditional history pleaded by the plaintiffs runs as follows:-

“8. An Illah hunter, one Obi Isaba chanced on Ukala-Okpunor during one of his hunting expeditions and persuaded the Illah people to invade it, it being a small town to the north of the Iyi-Ukwu river.

9. The Illah people invaded Ukala-Okpunor and drove the people away from the entire land in dispute and they fled to their present site about 3 1/2 miles to Onicha Olona.
10. The Illah invaders took possession of the land in dispute and the descendants of one Agu, one of the leaders of the invasion settled on the whole area previously occupied by the Ukala Okpunor community, and thereon established the Umuagu village of Illah. The remaining villages of Illah community occupied the surrounding land (not in dispute) near Ukala-Okpunor (i .e. to the south and west of the land in dispute.)
11. The Obi (or Eze) of Illah and the Obi or Eze of Ebu decided to fix a boundary between their respective territories and agreed that they should simultaneously set out from some given location in their respective territories at an agreed time and that the point at which they met would be the boundary between them.
12. On the given date the Obi of Illah and the Obi of Ebu set out and their meeting point was the Oli-akwukwo Iyi Ogo stream which has since that time (beyond human memory) been the boundary between Illah and Ebu and which boundary has been respected by both communities.
13. The defendants, the people of Ekpechor, had then not appeared on the scene and did not exist as a community or place in that area or at all at that time.
14. Much later, the people of Ekpechor arrived and stayed with the Ebu community which allowed them to occupy the southern reaches of Ebu land between the built-up areas of Ebu and the Oliakwukwo Iyi Ogo stream to the south.
15. The Oliakwukwo Iyi Ogo stream (otherwise called Egbeabu stream by the defendants) remained then (as at present) the boundary between the Ebu and the Illah communities, respected by Illah, Ebu and Ekpechor alike neither the Ebus and Ekpechors on the one hand to the north of the stream nor the Illahs to the south daring to cross the stream.
16. Many years later when the defendants’ people fell foul of their hosts (the Ebus) they crossed the Oliakwukwo Iyi Ogo Stream and approached the Umuagu people begging for land to live in. The plaintiffs’ ancestors granted the defendants’ ancestors the parcel of land verged green in the plaintiffs’ plan on which the defendants established a village.
17. The defendants’ ancestors who approached the plaintiffs’ ancestors for the parcel of land hereinbefore referred to were led by one Emina and the plaintiffs’ ancestors who made the grant were Obi Emefia Ezenwa; Obi Gbemudu; Obi Enwuzor and there were also present, one Omeazu who was the caretaker of all the forests.
18. Later, the defendants’ ancestors again approached the plaintiffs’ ancestors begging for a grant of land for farming. The defendants were received by the plaintiffs under the leadership of one Obi Enwezor, father of Ezenwa and grandfather of Enezue and others. The plaintiffs had compassion on the defendants and acceded to their request granting them the area verged violet in the plaintiffs’ plan (which included the original grant) for farming purposes on the following terms, that is to say:

(a) rendering of an annual tribute of 60 yams, 6 gallons of palmwine and 20 kolanuts before the farming season;

(b) after the farming season the defendants should again render identical tribute of 60 yams, 6 gallons of palm wine and 20 kolanuts.

19. The land thus granted is roughly triangular and is bounded on the west by the lyiocha stream; on the north by the Oliakwukwo Iyi Ogo stream; on the east for some distance by the Yagagbe stream; and the apex of the triangle in the south was marked by an Igba tree (now a stump) where also stands a Tamakpa tree as depicted in the plaintiffs’ plan.
20. The Ekpechor people dutifully and faithfully rendered these tributes until about 1912 when the leader of the plaintiffs, one Chief Enueze, reputed to be the most powerful chief at that time ordered that no more tributes should be required of the defendants because there had been intermarriage between the two communities. The plaintiffs’ .community agreed to this relaxation, and from that time did not require the defendants to render the tribute by which they hold the land.
21. After a long period of intermarriage (whilst the two communities remained distinct and retaining their separate identities) it became a practice which later matured into a custom that on the death of an Umuagu woman married by an Ekpechor man, her body would be taken to the boundary of the land granted to the defendants for farming at the point of the Tamakpa tree, from which place the people of Umuagu would receive the body and lake it home for burial.
22. The point (Tamakpa) was accepted and respected by both communities as the boundary between them.” (Italics in paragraphs 8 and 10 are mine for emphasis)

It is this traditional history that the learned trial Judge rejected. The defendants for their part pleaded as follows:

“6. The defendants deny paragraphs 7, 8, 9, 10, 11 and 12 of the amended statement of claim. In a further answer to the said paragraphs the defendants aver that the present Ebu Town which includes the land in dispute was never invaded and that Iyi-Ukwu river (part of which is called Adugbene stream) remains the boundary between Ebu and Illah peoples. Furthermore the boundaries and features of the land in dispute are shown in the defendants’ plan heretofore mentioned.

8. In a further answer to the foregoing paragraphs the defendants say that their ancestor Irakpe otherwise known as Ubueni migrated from Benin with his brother Onyimoji centuries ago. Irakpe settled on a different area then known as Ukala but now known as Illah (sic), Irakpe or Ubueni had two children namely: Okomeje and Iyiekpechi. Okomeje) Iyiekpechi elder brother had three sons namely: Ogo, Ekpechor and Iyiagoshimili, while Iyiekpechi had six children viz: – Aganike, Usebe, Oke, Okudulu, Ugbolo and Amomagele. These nine children form the nucleus of the nine quarters of Abu.”

It is the contention of the plaintiffs in this appeal that the learned trial Judge and the court below failed to consider the relative strength or the parties’ title to the land in dispute and that if the 2 courts had applied the principle in Mogaji v. Odofin (1978) 4 SC 91 they would have found for the plaintiffs. It is contended that the 2 courts below placed a heavier burden on the plaintiffs and that this occasioned a miscarriage of justice.

I must say I find no merit whatsoever in the arguments advanced by plaintiffs’ counsel in this appeal. A long line of cases beginning with Kodilinye v. Odu (supra) has laid it down that in a declaratory action the onus of proof lies on the plaintiff and he must succeed on the strength of his own case and not on the weakness of the defence except where the case for the defence supports plaintiff’s case. The learned trial Judge was fully conscious of this principle of law and applied it, correctly in my respectful view, in this case. Learned counsel for the plaintiffs submitted before us that the case for the defence supported plaintiffs case. When asked by us however, to show where the defence supported the plaintiffs’ case he could not do so. For the plaintiffs to succeed, they should have pleaded and led evidence as to the extent of the land of the people they claimed they conquered and took over the land. They did not do that. There is ample evidence to support the findings made by the learned trial Judge and affirmed by the court below. Paragraph 8 of plaintiffs’ amended statement of claim would appear to support defendants’ case that Iyi-Ukwu was the boundary between them (descendants of Irakpe) and the Ukala Okpunor people (descendants of Onyimoji).

In a situation such as this, where there are concurring findings of the two courts below, the burden on an appellant in this court is great indeed. This court has consistently held that it would not disturb concurring findings of facts by lower courts which are supported by sufficient evidence. See for instance Njoku v. Eme (1973) 5 SC 293; Chinwendu v. Mbamali (1980) 3 – 4 SC 31 at page 75 where Obaseki J.S.C. observed:

“It is necessary to emphasise that in such a case where there are two concurrent findings of fact, these findings cannot be disturbed without any substantial error apparent on the record of proceedings.”

See also Enang v. Adu (1981) 11 – 12 SC 25. To succeed in this appeal plaintiffs must show that the findings of fact made by the trial Judge and affirmed by the court below are not supported by sufficient evidence or that there is some miscarriage of justice or violation of some principles of law or procedure. Neither of these have the plaintiffs shown in this case. On the main issue of boundary the learned trial Judge made specific finding of fact based on the evidence before him. The court below rightly affirmed that finding. I am not satisfied that the plaintiffs have shown any good reason why this court must disturb that finding. The plaintiffs averred in paragraph 10 of their pleadings that their ancestors who drove away the Ukala Okpunor people from the latter’s land occupied “the whole area previously occupied by the Ukala Okpunor community”. The extent of that land, according to the defendants – and the learned trial Judge agreed with them is Iyi-Ukwu stream. The plaintiffs have not shown how and at what time the land they conquered and occupied extended beyond that stream to Iyi-Oliakwukwo stream.

The conclusion I reach after a consideration of the record of appeal and submissions, both in the briefs and in oral arguments of learned counsel for the parties, is that this appeal is completely devoid of any merit. I have no hesitation in dismissing it with costs assessed at N10,000.00 in favour of the defendants/respondents.

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SC.273/1991