Paul Omoregbe V. Ehigiator Edu (1971)
LawGlobal-Hub Lead Judgment Report
FATAYI-WILLIAMS, J.S.C.
Plaintiff, now appellant, had instituted an action against the defendant, now respondent, in which he claimed declaration of title to a piece of land with a thatched house thereon situate at Idunmwungha village in Benin district, possession of the said house, and an injunction restraining the defendant, his agents and/or servants from trespassing on the said property.
The plaintiff’s case as borne out by his statement of claim and the evidence adduced by him in support is as follows. The plaintiff, a road overseer with the Ministry of Works and Transport, was, in January 1941, sent to Ehor to supervise some road work between five and ten miles from Benin City. At first he lived in the road camp. Later he went to live at Idunmwungha village as a tenant of one Ehigiator Asemota. Not long after, Asemota sold the house and the purchaser gave the plaintiff notice to quit. With nowhere to move to, the plaintiff went to the reigning Enogie of the village, one Chief Orumwense, and asked for a plot of land on which to build. The Enogie asked him to see the Odionwere (the next in rank to the Enogie) and the elders of the village. He saw them. Four days later, one Ogieseri Ojugo (2nd PW) was asked by the elders to show the plaintiff a building plot between miles eight and nine on the right hand side of the road from Benin City to Ehor. Ojugo showed him the plot which was later handed over to the plaintiff in the customary manner after the customary ceremonies had been performed at the site by the Enogie, the Odionwere and the elders of the village.
At this ceremony, the plaintiff gave the Enogie and the elders a present of 8 kolanuts, four bottles of gin, and a head of tobacco. Among those present at this ceremony of the handing over of the plot were Orumwense, the Enogie of the village, Iyiewuare the Odionwere, Imade, Eruba, Omorose, Igbinosun, Ogieseri Ojugo (2nd PW), and Ogieva Iyiewuare. After the land was handed over to him, the plaintiff cleared and levelled it and built a bamboo hut on it.
Three months after he had been given notice to quit, he moved into this bamboo hut which he later rebuilt with mud. He lived in the mud hut for four years and then left when he was transferred first to Agbanikaka and later to Akure in 1948. The land on which the plaintiff built the mud hut and shown on the survey plan (Ex. A) is the one now in dispute.
Before the plaintiff’s transfer from the village, the defendant asked the plaintiff to let him live in the mud house. Because they both came from the same quarters in Benin the plaintiff agreed, provided the defendant would maintain the house.
Between 1948 and 1964 when he was posted back to Benin city, he visited the house four times and slept there on three occasions. As Benin city was only eleven miles away from the village, the plaintiff went there again in 1966 and noticed some structural alterations in the house. When he questioned the defendant about the alterations, the defendant claimed the building as his own because he had carried out the structural alterations. The plaintiff disputed the claim and consequently sued the defendant.
In support of his claim the plaintiff called three witnesses one of whom is Okonedo (4th PW) the purchaser of the house in which he first lived as a tenant. The other is Ogiesare Ojugo (2nd P) who testified as follows:
“I know the plaintiff at Idunmwungha when he was working at the Ministry of Works at Idunmwungha. He was then living at Usiemefo’s house in the same village. Usiemefo Okonedo was the owner of the house. By this time the defendant was living in the house of one Omokaro. At that time, I was the “Oga” of the town and was also in charge of tax collection in the village. The plaintiff after staying in Okonedo’s house for a time, approached the elders for land on which to build. The people approached were one Orumwense the Enogie, and one Iyi-Ewuare the Odionwere along with other elders. Myself and one Imade were delegated by the elders to show the plaintiff the spot on which to build his house. This spot was very close to Rev. Ohuoba’s school compound. We showed him the piece of land and he had a common boundary with one Okhonmina, deceased (but his son is alive still). When he had been shown the spot, he said he liked the spot and gave the elders drinks and kolanuts. He brought his brother Iserhien and one Thomas to help in setting up the building, aided by other people the ‘eroghaes’ (men of his age group) in the village.
I am presently the chairman of the school committee in the village and also a tax collector. I was a councillor for five years and was also a court member at Eyaen Customary Court. I am an ‘Odion’ (an elder) in the village. The Enogie and the Odionwere at the time have long been dead. The present Enogie who is now in court was a young man at that time. The present Odionwere Imade Omorose was then living at Idunmwunehegie at mile 8 Ehor Road. I first met the defendant Isiuhe at Benin City. Later on, he moved to Idunmwungha village. The building put up by the plaintiff is still there. The house was first made of bamboo and later on it was set up or filled up with mud wall. After it had been filled with mud wall the bamboo sticks were removed. The defendant is living in the house now. When the brother had quarrelled with the defendant, the defendant came to beg the plaintiff to, allow him to live in the house and to make use of his well.”
In answers to questions asked under cross-examination the 2nd PW still maintained that he was the one who showed the land in dispute to the plaintiff and that to his own knowledge, the defendant did not ask for a piece of land from the Enogie.
In his defence, the defendant claimed to have built on the land in dispute about 25 years ago but said it was given to him by the villagers who included Orumwense the present Enogie, and Iyi-Ewuare the Odionwere. Nobody had challenged his title to the land. He had no knowledge that the land in dispute had been allocated to the plaintiff. He denied that he was ever questioned by the plaintiff about the land. Under cross-examination, the defendant admitted that he knew Ojugo (2nd PW), that he was the chairman of the school committee and that he was also a tax collector. The defendant also admitted that when he first came to the village many years ago Orumwense the father of the present Enogie was then the Enogie while Iyi-Ewuare was the Odionwere. One of the witnesses called by the defendant was Eguavoen Orumwense (1st DW) the present Enogie of the village and son of Orumwense, the former Enogie who was one of the elders who the plaintiff said granted him the land in dispute. This witness said he was the one who allocated the said land to the defendant.
He said he was not aware that the plaintiff had approached his father for a piece of land and that if the land in dispute had been allocated to the plaintiff he would have made enquiries from the village elders. He denied that the plaintiff complained to him about the allocation to the defendant. In answering questions put to him about the plaintiff, this witness testified further as follows:
“The plaintiff was living in our village. He was living in Usiomefo Okonedo’s house. Usiemefo Okonedo bought the house from one Ehigiator Asemota. By the time Okonedo bought the house, the plaintiff was there. I know the plaintiff very well. He knew my father. He was friendly with my father.”
When questioned about Ogieseri Ojugo (2nd P/W), he further testified as follows:
“Ogieseri Ojugo was the ‘Oga’ of the village when the plaintiff came to the village to work for the first time. The ‘Oga’ of the village receives visitors in the absence of Enogie and he can be sent out on errand as an agent of the village. ‘Oga’ is regarded as one of the elders of the town and is always invited to important meetings in the village.”
One Igiewe Imade (2nd DW) the present Odionwere of the village also had the following to say about Ojugo (2nd PW):
“I know Ogieseri Ojugo. He is junior among the elders. He was formerly one of the tax collectors and formerly a member of the committee. Ogieseri Ojugo has a house in Idumwungha. At the time, the father of the present Enogie was alive; Ogieseri Ojugo was a member of the allotment committee in respect of land. I don’t know if he was ‘Oga’.”
After reviewing the evidence adduced by both parties the learned trial judge dismissed the plaintiff’s claim after finding as follows:
“In the present case, not a single witness has been called by the plaintiff who I consider to be both independent and authoritative in regard to the evidence on customary law. The plaintiff has only been able to produce one reliable witness the second plaintiff’s witness Ojugo who impressed me as a true witness but he was merely one of those sent on errand to show the plot alleged to be allocated to the plaintiff. The grantors were not called to give evidence the evidence is that they are not all dead, some are still alive. The whole evidence about the caretaker was unsatisfactory. There was no evidence that it was the plaintiff who put the defendant in possession of the house or land except the plaintiff’s own evidence.”
The learned trial judge also dealt with the defence of laches put forward by the defendant. About this, he made the following observation:
“If the title to the land had been proved and the plaintiff built the bamboo hut in 1943 and after three years replaced it with mud, it would appear evident that at least from 1946 to 1966, i.e. for a period of twenty years the plaintiff did not know what had happened to the house. This delay had not been satisfactorily explained. All this time, there had been some physical and structural changes alleged. The plaintiff said he took no notice of these, even he said he slept in the house on three occasions. The plaintiff was certainly not vigilant over his rights, if any, and he is to blame. See Agheyegbe v. komi 12 W.A.C.A. 383 where a delay of 9 years was fatal to a claim of right.
In Taylor v. Kingsway Stores (1965) N.M.L.R. p. 103, the defence of laches succeeded where the plaintiff delayed for 25 years. I consider that the doctrine of laches is applicable in this case. A person entitled to land should not stand by and allow another person who thinks the land is his to make improvement and then assert his rights to the land, he wants to take the improvements and cheat the other man of his expense he is making.”
It is against this judgment that the plaintiff has now appealed to this court. At the hearing of the appeal, the defendant/respondent, although served with the hearing notice through his solicitor, did not appear and was not represented. The appeal was therefore heard in his absence. Arguing that the judgment was against the weight of evidence, Mr. Popo for the appellant submitted that there was nowhere in his judgment where the learned trial judge said he disbelieved the testimony of the plaintiff/appellant. On the contrary, he stated in clear terms that the 2nd witness called by the plaintiff/appellant was a witness of truth and that having believed the testimony of this witness in its entirety the judge was in error in not finding for the plaintiff/appellant.
Since the deceased Enogie and the elders of the village had granted the land to the plaintiff/appellant, there was nothing left for the reigning Enogie (1st DW) to give to the defendant/respondent. Learned counsel also attacked the finding that there was no evidence, other than that given by the plaintiff/appellant himself, that it was the plaintiff/appellant who put the defendant/respondent in possession of the disputed land; he referred to the testimony of the 2nd P/W the truthful witness that after he (the defendant/respondent) had quarrelled with his brother, he came to the plaintiff/appellant and asked him to allow him to live in the house in dispute and to make use of his well and that he is still living in the house. Finally learned counsel complained about the finding of the learned trial judge in respect of the defence of laches put forward by the defence.
In a claim for declaration of title to land, a judge who is confronted with two opposing accounts of how the disputed land was acquired must consider both accounts and decide on the balance of probabilities which of them he will accept. Where no misdirection or failure to consider relevant matters is alleged, a finding of fact made after due consideration will not be disturbed unless the appeal court is satisfied that the finding is against the weight of evidence. In the instant case, can we say that the judgment, having regard to the testimony of the plaintiff/appellant which the trial judge did not disbelieve and that of Ojugo (2nd PW) which he accepted as truthful, was not against the weight of evidence
In the first place, we see no justification for the devaluation of the clear, cogent and particularly relevant testimony of the 2nd PW to that of a mere “errand boy”. It was agreed by both parties that this witness held the office of “Oga” in the village at the time the land was allocated to the plaintiff/appellant. The evidence of both the present Enogie (1st DW) and the present Odionwere (2nd DW) showed, without doubt, that the 2nd Plaintiff was at all material times one of the elders of the village; he was the “Oga” whose duties included receiving visitors to the village in the absence of the Enogie and acting as an agent of the village, not to mention his membership of the land allotment committee. It must also be remembered that he was the one who took the plaintiff/appellant to the land and showed the site to him. We can conceive of no other evidence more relevant and more convincing if believed, than that of this witness in a case of this type.
We are therefore in no doubt whatever that the evaluation of the testimony of this witness left much to be desired. If the learned trial judge had made a proper evaluation of this credible evidence as he should have done, he would have found for the plaintiff on that evidence alone.
It is not the business of a court of appeal to substitute its own views of the facts for those of the judge or tribunal that had heard and seen the witnesses but if the judge or tribunal has failed to make proper use of the opportunity of seeing and hearing the witnesses, or if from stated or uncontroversial or undisputable facts inferences are shown to have been drawn which are wrong or are not supported by the evidence, then the court of appeal must in the interest of justice exercise its own powers of reviewing those facts and drawing appropriate inferences from them. In the case in hand, it was not disputed that the 2nd P/W was an “Oga” of the village at the time the plaintiff/appellant said he asked the deceased Enogie and elders for the land; it was also conceded that as “Oga” he could act as an agent of the village; one of the defendant/respondent’s witnesses said he was also a member of the land allotment committee. Added to all these is the evidence of the 2nd PW himself as to how he showed the plaintiff/appellant the piece of land in dispute, how he said he liked it, and how the men of his age group (“eroghaes”) assisted him in putting up the building on it. The witness also testified that, to his knowledge, the defendant/respondent did not ask for land from the Enogie.
The learned trial judge believed all these. In our view, therefore, the only inference which he could have drawn and which we now draw from these facts is that the land was given by the former Enogie and the elders of the village to the plaintiff/appellant, that he built a house on it, and that when he was leaving the village on transfer he allowed the defendant/respondent to occupy the house.
With respect to the finding of the trial judge that the doctrine of laches was applicable, we are at pains to see how this could be so. Not only is there evidence given by the plaintiff/appellant and which was not disbelieved, that the defendant/respondent was allowed to stay in the building in order to maintain it, there was also evidence that between 1948 and 1964 he visited the village about four times and slept in the house on three occasions. The court was not told in what year he slept there on this third occasion. The plaintiff/appellant further testified that it was when he paid another visit to the house in 1966 and discovered structural changes in the building that the defendant/respondent laid claim to it when questioned about the building. In the face of this testimony we do not see how the learned judge could hold that the plaintiff/appellant had slept on his rights.
After giving the arguments adduced before us the most anxious consideration we are in no doubt that the trial judge did not properly evaluate the evidence which he himself believed. If he had done so, he would not have dismissed the plaintiff/appellant’s claim. The judgment cannot therefore be allowed to stand. The appeal is allowed and the judgment of Ighodaro J. in suit no. B/4/1967 given in the Benin High Court, including the order as to costs, is accordingly set aside.
Instead,we make the following orders:
(i) There shall be judgment for the plaintiff in his claim for:
(a) Declaration of title to the piece of land and the mud house thereon situate at Idunmwungha village via Ehor in Benin division and edged pink in plan No. O.M. 2394 of 5th April, 1967 (Ex. ‘A’);
(b) Possession of the said piece of land; and
(c) Perpetual injunction restraining the defendant, his agents and/or servants from trespassing on the said land.
(ii) The above shall be the judgment of the court.
(iii) The defendant shall pay the plaintiff’s costs in the court below fixed at fifty guineas. He will also pay the plaintiff/appellant’s costs in this court assessed at sixty guineas.
Appeal allowed. Judgment of High Court set aside.
Other Citation: (1971) LCN/1150(SC)
