Shell B.P Ltd .v Jacob Abedi & Ors (1974)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C 

In his amended writ of summons in suit No. UHC/32/67 filed in the High Court at Ughelli, the plaintiff claimed as follows:

“1. Against the first defendant:12,000 being compensation due to the plaintiff from the first defendant in respect of prospecting for oil and mining operations, carried out by the first defendant on the plaintiff’s piece of land at Abadiama situate between Ovworighala and Abadiama Vlllage in Ughievben Clan within the Judicial Division of this Honourable Court since 1965.

2. Against 2nd and 3rd Defendants: Declaration of title as owners under Urhobo Customary Law of the land lying and situate between Abadiama and Ovworighala Villages of Ughievben Clan, Ughelli Judicial Division, Delta Province of the Mid-Western State of Nigeria.”

Because of the crucial role which pleadings are likely to play in the course of these proceedings, the pleadings will be set out in more detail than usual. Paragraphs 2, 3,4, 5, 6 ,7, 9, 10, 11; 12, 13, 14, 17, 18, 20 and 21 of the plaintiff’s amended statement of claim read:

“2. The 1st defendant is a limited liability company registered in Nigeria under the Companies Act and carrying on within Nigeria the business of prospecting for mineral oil (hereinafter called ‘the Company’).

3. The 2nd and 3rd defendants are Ijaws and have on their own application been joined by order of court as defendants representing the people of Gbekebor who are Ijaws (hereinafter called ‘the Gbekebors ‘).
4. The Abadiamas are owners in possession of the piece of land which is edged yellow on the survey plan attached hereto (hereinafter called ‘the land in dispute ‘).
5. The Abadiamas through their ancestors from time immemorial settled on the land in dispute when it was virgin forest and became owners in possession thereof according to the customary law of the Urhobos. They exercised and are still exercising full rights of ownership thereon.
6. They have on the said land their ancestral jujus worshipped in respective shrines; hamlets; cultivated farmlands; fishing canals; fishing ponds; rubber trees; palm trees and other natural forest products over which they have from time immemorial been exercising absolute and unchallenged right of ownership.
7. They said land is bounded by the lands of the Ovworigbala community, the Owahwa community, the Egbo community and the Forcados River.
8. About the month of June, 1966 the Abadiamas discovered that certain persons, later known to be the Company effected oil prospecting operation on the land in dispute in an area falling within what the Company now calls ‘Engolor Location’.
9. The area of land affected by the Company’s operation is approximately 4.249 acres.
10. Ashofovwi juju shrines, palm trees, raphia palm trees, fishing ponds, fishing canals, rubber trees and other propeny of the Abadiamas were damaged by the Company in the operation referred to in paragraphs 9 and 10 supra.
11. The company during the said operation excavated and removed soil from the land in dispute in an area measuring 60 yards long x 60 yards wide by 6″‘3 yards deep (Le.) 24,000 dubic yards. The excavated area is now submerged in water.
12. Property of the Abadiamas damaged by the Company in the said operation area:

(i) 534 palm trees

(ii) 12 raphia palm trees

(iii) 4 rubber trees

(iv) 36 fishing ponds

(v) 8 large fishing canals

(vi) 12 medium fishing canals

(vii) 15 small fishing canals

(viii) 3 shrines of Arhofovwi juju.

14. The Company did not make enquires from the Abadiamas as to persons entitled to ownership of the area of its operation within the said land before entering thereon. The Company did not payor offer payment of compensation or any fee to the Abadiamas for operation carried out on the land or damages caused as a result of such operation.
15. The Abadiamas are entitled to be paid damages and/or compensation by the Company for the operation carried out on the land as herein averred.
16. The Gbekebors have claimed ownership of the land in dispute or a portion thereof and on the basis of their claim they have disputed the rights of the Abadiamas to claim and received from the Company compensation for the Company’s operation and damages resulting therefrom as alleged herein.
17. The Gbekebors have never exercised any act of ownership on the land of the Abadiamas and are not entitled to ownership or possession thereof.
18. The Abadiamas have made several demands on the Company for payment but the Company has failed to pay compensation in respect of its operation canied out on the land in dispute.

Whereupon the plaintiff claims as per his writ of summons:

(a) against the 1st defendant the sum of 12,000, and

(b) against the 2nd and 3rd defendants declaration of title as owners under Urhobo Customary law of the land in dispute. ‘

In their own statement of defence, the fIrst defendant admitted carrying on oil prospecting operations on the land in dispute in June, 1966, but denied the claim of the Abadiamas to be the owner of the land. They added that the people of Gbekebor claimed ownership and possession of the land and of the crops and economic trees on it and that it was the people of Gbekebor that were in actual possession when they started operations there. After denying the averment in paragraph 11 of the statement of claim, they averred further in paragraph 9 of their own statement of defence as follows:

“9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . the Defendant denies ever damaging juju shrine, palm trees, raphia palms, fishing ponds, fIshing canals, rubber trees and other property belonging to the plaintiff. The few crops damaged by the 1st Defendant were the property of the Gbekebor people who put the first defendant on the land and for which the first defendant paid adequate compensation on 31/12/65. The fIrst defendant shall found on the receipts given to the 1st defendant by the people of Gbekebor if need be.”

The first defendants also denied the averments in paragraph 17 of the statement of claim that the Abadiamas were those entitled to be paid “damages and/or compensation” for the operation carried out on the land and stated further that they did not pay compensation to the plaintiff because it had already been paid to the Gbekebor people.

For their part, the 2nd and 3rd defendants denied the claim of the plaintiff that the Abadiamas are the owners of the land in dispute. They also denied the averments in paragraphs 4, 5, 11, 13, 17 of the statement of claim but averred in paragraphs 4, 5, 6, 7, 8, 12, 16, and 17 of their statement of defence as follows:

“4. In answer to paragraphs 6, 7 and 8 of the statement of claim, the 2nd and 3rd Defendants aver that they are the owners in possession from time out of human memory of the piece or parcel of land between Abadiama and Ovworigbala and directly opposite Gbekebor and situate in Western Ijaw, within the jurisdiction of this honourable court. The said land is called by the name of PEREKEMESEIGHABOU after a big juju of that name situate in the bush.

5. As owners in possession, the 2nd and 3rd defendants have been exercising maximum acts of ownership over the land. They have therein

rubber, palm and rafia trees, fish ponds and canals of various sizes. The Perekemeseighabou juju has two other shrines near to it, and all three belong to Gbekebor people.

6. The plaintiffs came originally from Jeremi Clan, Eastern Urhobo Division, and settled at the present site of Abadiama with the permission of Gbekebor people. They paid tribute until 1915 when they stopped and one Swe of Gbekebor sued Oweke of Abadiama Gbedigoro of Otitiri and Tuegwe of Ofumgbala for 10 years arrears of rent, and won. This suit No. 1 of 1925 (later No. 17 of 1926) disposed of by His Honour Mr. Justice T.D. Maxwell on 17th day of November 1927 will be founded upon at the trial.
7. In further answer to paragraphs 4 to 8 of the statement of claim the 2nd and 3rd defendants say that the plaintiffs have neither jujus nor ponds or canals and rubber, rafia or palm trees in the area in dispute and that the 1st defendants entered the land with the permission of the people of Gbekebor. By receipt No. DEL. 47A dated 31st December, 1965, the first defendants paid the sum of 6:12s:0d to the people of Gbekebor for use of the land. The receipt will be founded upon at the trial.
8. The 2nd and 3rd defendants admit paragraphs 9 and 10 of the statement of claim and say that the name ‘Engolor’ was given to the location at the suggestion of the people of Gbekebor, the 1 st defendants had earlier called it ‘Obotebe’ East’ location.
9. In further answer to paragraph 13 of the statement of claim, the 2nd and 3rd Defendants say that the plaintiffs have no palm or raphia trees, rubber trees, ponds, canals and juju shrines in the area in dispute. The only trees, ponds and canals in the area belong to the people of Gbekebor and the 1st defendants have paid compensation for same, except for the three juju shrines of the Gbekebor people for which negotiation for the payment of compensation is still going on. The receipts issued by the Gbekebor people for the various payments made to them by the 1st defendants will be founded upon at the trial.
10. The second and third defendants admit paragraphs 18 and 19 of the statement of claim to the extent that they (the Gbekebors) are owners in possession of the entire area of land in dispute and any right enjoyed on the land by the plaintiff (which is denied by the Gbekebors) is with the permission of the Gbekebor people.
11. Paragraphs 20 and 21 of the statement of claim are denied by 2nd and 3rd defendants and they say that the plaintiffs are not entitled to any payments or compensation in respect of the operations of the 1st defendants on the land in dispute, and will at the trial contend that the plaintiff is stopped from bringing this action against the defendants.”

At the trial, Jacob Abedi (plaintiff) testified as follows:

“The land in dispute was virgin forest when my people the Abadiama people founded it. They cleared the land. The founder was one Ogun of Jeremi. Ogun is dead. He died a long time ago. Neither myself nor my father or grand father knew him. Ogun hailed from the Owawa community. Owawa was the son of Jeremi the founder of the Jeremi clan” Jeremi is made up of Sub-Clans, namely Orowhe, Owawha, Okpedi and Oviourhie. They are all Urhobos. In the Urhobo tradition the first to occupy a land is the owner of that land. Ogun was the first occupier of the land in dispute. In the land in dispute, we have cassava farms, rubber plantations, palm trees, palwine trees, fish ponds, streams, economic trees, and other cash crop farms on the land. I am a Christian. We have a school building, a town hall, market place, a church and juju shrines on the land. Ever since I grew up in Abadiama no one has interfered with us on the land. . . I know the people of Gbekebor.

They are Ijaw people. Gbekebor is on the other side of the Forcados river. Tenants have been felling timbers on our land for very many years. The Gbekebor people have never claimed any share of the royalties. In

1966, Shell BP that is the 1st defendant came on our land to explore for oil. The area Shall BP worked is shown on our plan. They fell the trees on the land, destroyed various ponds by digging them into a canal. They destroyed our juju shrines and rubber trees. They dug up the whole land and it now looks like a river. . .

The total value of the things destroyed is 12,000. The 1st defendant did not obtain our permission before they went on our land. They did not pay us any compensation for the things destroyed. We demanded compensation but they refused. We the people of Abadiama have never paid tribute to the Gbekebor people in respect of this land.”

When this witness was cross-examined as to their relationship with the people of Gbekebor vis-a-vis the land in dispute, he replied.

“Abadiama people are not customary tenants of the Gbekebor people.

They have not paid any tribute to Gbekebor people. Oreke has never been sued by the Gbekebor people in respect of the land now in dispute.”

This testimony was corroborated by Avwerhe Dase (3rd P/W) who stated that “the Abadiama people do not pay tribute to the Gbekebor people.” Another witness by name Odiphri Monah-Rowe (6th P/W.) also. testified that:

“The Abadiama people did not come to their land with the consent of the Gbekebor people”

One Chief Charles Eregbulogha Ugen (9th P/W.) the 80 year-old clan head of Jeremi Clan of which the Abadiama people are members stated in his own evidence as follows:

“Abadiama does not belong to the Gbekebor people. It belongs to the Jeremi Clan. Nobody from Abadiama pays any tribute to Gbekebor people. The founder of Abadiama was Owawha’s son.”

For their defence, the 1st defendants called one Ademiluyi who admitted that his company went on the area called Englolor Location on the land in dispute in December 1965, and that they paid the Gbekebor people, who claimed to be the owners of the land, compensation for the use of the land and for the crops, fish canals, fish ponds, structure and rubber trees which they found there. About June, 1966, that is, months after payment of compensation to the Gbekebor people, the Abadiama people wrote to the 1st defendants disputing the ownership of the location and demanded compensation which they refused to pay.

In their own defence, the 2nd and 3rd defendants testified and called seven witnesses. Among the witnesses called was Chief Talbot Edon Carter (1st D/W), the traditional Iyasere of Akugbene in the Mehin Clan, who gave traditional evidence in support of the 2nd and 3rd defendants claim to the land They also called one Otoyare Omoriahovwan (2nd D/W), an Urhobo man who lives at Otitire. This witness said that he is a native of Owhawha from which the plaintiff originated, that the people of Otitire and Abadiama, the plaintiff’s village, were allowed to settle where they now live by the Gbekebor people, his people and the Abadiamas used to pay tributes to the Gbekebors, but that he did not know whether the Abadiamas still paid the tributes. Tikarede Zipamo (2nd defendant) after giving evidence of the traditional history of the land, also testified as follows:

“I know the Shell Company the 1st defendant. The Shell Company came to Gbekebor to ask permission to prospect for oil on our land in Peremekeseya- Bo. One Mr. Opara came as the representative of the Company. We agreed. He then went to the village of Abadiama to see the people. He went back to Warri and later came with a surveyor. They surveyed the place and made their camp. They ten enumerated and assessed what is on the land. They destroyed palm wine trees, palm oil trees, rubber trees, fish ponds, fish canals. and three juju shrines. . .

Later we were invited to Warri and we were paid compensations by the Shell BP. The people of Gbekebor and also Abadiama assisted Shell BP to clear the site. Michael Axonfan the 3rd defendant was the contact man from Gbekebor. The Abadiama people had not contact man. They were very few. The first plaintiff Jacob Abedi was one of the labourers from Abadiama who worked there with Shell Company.”

He then explained how the Abadiama people came to settle on the land as follows:

“I know Abadia village. The people staying there are Urhobos. They are from Owhawha. When they came they went to the Gbekebor people to ask permission to settle on the land. Their leader was a man called Ogun. They were asked to pay tributes. They were asked to pay palm oil, yam, plantain, sugar cane every year. They paid these tributes. After some time they stopped to pay these tributes. Then one Awe of Gbekebor took action against them in court. Awe got judgment. Awe sued one Oweke of Abadiama and one Gbedagoro or Otitiri, and one Tuewe of Ororigbala. These people were heads of their respective community and Awe was the head of the Gbekebor people. Gbekebor won the case. After the case the Abadiama, Oforigbala and Ititiri people resumed payments of tributes to Gbekebor. We had to reference the judgement before they were obliged to pay the tribute. After the case each of the three villages began to pay 15 a year instead of the farm crop tributes they used to pay. The Abadiama and Oforigbala people have stopped paying the tribute. Only Otitiri people still pay their tribute. They stopped paying for three years and we sued them again. The case in non suited. Since that time they have not paid any tributes.”

The above testimony of the 2nd defendant was substantially corroborated by Michael Duketa Ezonfade (3rd defendant).

After considering the totality of the evidence adduced, the learned trial judge found that the traditional evidence given in support of the claim of the 2nd and 3rd defendants is more credible and came to the conclusion that the Gbekebor people are the owners of the land in dispute edged yellow in the plaintiff’s plan (Exp. P3). This area, it must be pointed out, includes the area edged RED in which the 1st defendants carried out the oil exploration and in respect of which compensation is now being claimed by the plaintiff. The learned trial judge also examined the record and considered the effect of the judgement in the 1925 case (Ex. D9), including the writ of summons in the case, and came to the following conclusion:

“On careful examination of same, I am now satisfied that the action was instituted and fought on a representative basis, and that the subject matter of that action included Abadiama land which is now the subject of . that action.”

He then found finally as follows:

“As I have stated in the first part of my judgement I believe it is the plaintiff’s people who are in actual occupation of the land on which the 1 st defendant operated and their possessory rights entitled them as owners of the things damaged to the compensation they claim.

I do not believe however that they are the de jure owners of the land for which they now ask for a declaration of title. I believe the Gbekebor people are their overlords.

The claim for declaration of title against 2nd and 3rd defendants there fore fails and is hereby dismissed.

The claim against the 1st defendant succeeds and there will be judgement for the plaintiff against the 1st defendant for 12,000pounds.”

The plaintiff appealed against the judgement of the learned trial judge dismissing their claim against the 2nd and 3rd defendants for declaration of title. This appeal was, however, abandoned during the course of the argument in the present proceedings.

The 1st defendants were also dissatisfied with the judgement given against them and have also appealed. The five grounds of appeal filed and argued by the learned counsel for the 1st defendants/appellants read:

“1. The learned trial judge erred in law and on facts in giving judgement against the appellants and in favour of the plaintiffs/respondents when on the findings of facts made by him he ought to have held that the appellants were on the land with the authority of the true owners thereof.

2. The learned trial judge erred in law and on the facts in failing to dismiss the plaintiffs/respondents’ claim for compensation when on the facts by him the claim made by the plaintiffs on their pleadings was not established and no claim (in the alternative) to compensation on the basis of customary tenancy was made to him on behalf of the said plaintiffs/ respondents.
3. The learned trial judge erred in law and on the facts in failing to observe that even if (which is denied) the plaintiffs are entitled to compensation as customary tenants the compensation payable to them ought not to be assessed on the same basis as if they were the owners of the radical title to the land.
4. The learned trial judge erred in law and on the facts in failing to dismiss the plaintiffs’ claim when the true cause of action was for trespass and it was clearly not established that the plaintiffs were in exclusive possession of the land over when they were claiming damages or compensation for trespass.
5. Judgement is against the weight of evidence.:”

The arguments adduced by the learned counsel for the 1st defendants/ appellants in support of the ftrst, second, and third grounds of appeal may be summarised as follows. Since there was no proof that the restrictions and conditions in the Oil Mining Lease No. 35 dated 6th March, 1964 (Ex. D4) granted by the Federal Minister of Mines and Power to the 1st defendants/ appellants were complied with by the 1st defendants/appellants, the plaintiff/respondent’s claim against them, although it was not so clearly spelt out, could only be in trespass. As it is a claim in trespass, the plaintiff/respondent, in order to succeed, must claim either that he is the owner of the land in dispute or that he derives title to it from the true owner. Since the plaintiff/respondent was adjudged not to be the owner, it is only a plea that he is a customary tenant of the Gbekebor people (2nd and 3rd defendants) which could defeat the entry of Shell BP (the 1st defendants/appellants) who had undoubtedly entered the land with the authority and consent of the Gbekebor people who have been held by the learned trial judge to be the true owners.

Neither in his pleadings nor in the evidence given in support did the plaintiff/respondent say that the Abadiama people are the customary tenants of the Gbekebor people. His case throughout the proceedings in the court below (and even in the proceedings in this court) is that he is the owner of the land in dispute (the yellow area in the plan Ex. P3) in which the land for which compensation is being claimed (the red area) is situated. The Abadiama people are bound by their pleadings and their case must stand or fall by the averments in those pleadings. The learned trial judge was therefore in error in making out for them a case which they have not made for themselves. If the plaintiff is now allowed to contend that his people are entitled to succeed as customary tenants of the Gbekebor people, this will make pleadings useless and will be contrary to previous decisions of this court on the importance of pleadings.

It may well be that if the plaintiff/respondent had claimed, in the alternative, that his people held the land as customary tenants, they might have been able to maintain an action in trespass against the 1st defendants/respondents; but as he has not done so, and his contention that his people are owners of the land having failed, his claim for damages for trespass must also fail.

Learned counsel further indicated that if the Abadiama people, as such customary tenants of the Gbekebors, had been making use of the ponds, trees, etc. on the land into which the 1st defendant/appellant had entered and destroyed these “hereditaments,” and the Abadiamas had claimed damages for their destruction, they probably would have succeeded. It is, however, different if they claim, as they have done in the case in hand, to be the absolute owners of the land and of the things attached to it, and ask to be paid as such. Having claimed on the basis of ownership and lost, that, in view of the maxim quic quid plantatur solo solo credit, is the end of the matter. Finally, learned counsel pointed out that even in this court, the plaintiff/respondent, in view of his grounds of appeal, is still maintaining that the Abadiamas are the owners of the land. That being the case, the learned trial judge was in error in his finding that the Abadiamas are the customary tenants of the Gbekebors through whom the 1st defendants/appellants have claimed the right to enter the land in the red area.

In support of his arguments, we were referred to two cases, namely. Chief Secretary to the Government v. Musa Apena and Ors. unreported but see WACA 2304 delivered on 6th November, 1946, and Lagos Executive Development Board v. Federal Administrator-General and Ors. (1960) L.L.R. 274. In the first case, which is an appeal in respect of a claim for compensation for land acquired by the Government at Ikeja, the West African Court of Appeal observed at pages 60-61 as follows:

“We will now deal with the competing claims of the 1st defendants and the 2nd defendant, who for some reason or other only claimed in respect of parcel No.9.

The second defendant, although at the commencement of the proceedings he was recognised by the 1st defendants as their customary tenant and therefore entitled to share with them as owners the compensation payable in respect of parcel No.9, in his statement of interest claimed as owner ‘by inheritance and by purchase and by virtue of a deed of conveyance’. He did not claim in his statement of interest as customary tent, nor was his claim ever amended in this sense, although when his counsel realised at the end of the hearing that this claim as owner was likely to fail, he urged that at any rate his client was entitled to compensation as customary tenant.”

After stating that they were unable to support the order of the learned trial judge which decreed forfeiture (against the 2nd defendant) which had not been properly claimed, the court, nevertheless, came to the same conclusal judge after fmding as follows:

“We accept the Judge’s finding that the Deed of the 4th July, 1944, did not confer title not having been made with the consent of the owners of the land. With this finding it seems to use that the 2nd defendant’s claim fell on the ground. As has already been pointed out he did not claim even alternatively as customary tenant, and no such claim was ever before the court below. If after the preposterous claim as owner had been made on his behalf, claim as customary tenant had been added or substituted, it is highly probable that it would have been vigorously resisted by the 1st defendants, and it is not unlikely that the 1st defendants would have responded to pleading forfeiture. The position is that the only claim standing in the 2nd defendant’s name deservedly failed.”

The second case is also a compensation case. It was heard by Coker, J., (as he then was) in the high Court of Lagos and he rejected the claim of the Egbe family, (3rd claimant), who had claimed the land in dispute in that case absolutely after finding at pages 284-285 as follows. . .

“It is manifest from the evidence that both the 1st and 3rd claimants have denied the title of the Oloto family and in a proper case have rightly incurred the consequential penalties. I am satisfied that the evidence to the effect that tributes were paid by or on behalf of the Egbe family until 1957 is connect. I do not believe the false testimony of the 3rd claimant that no such tributes were paid. Nor can I make a declaration in this case to the effect that as the Egbe family are customary tenants of the Olotos they be entitled to a part of the compensation payable since that family by its own case has contended that they do not hold of the Oloto family. . . .

The result therefore is that neither the 1st claimant nor the third claimant for the reasons I have set out above have established their rights to this land and that the 2nd claimants have proved to my satisfaction that they are the owners of the land.”

In reply, the learned counsel for the plaintiff/respondent contended that the plaintiff/respondent’s case against the 1st defendants/appellants is based on possession simpliciter of the area entered by them. He then argued further as follows. The plaintiff/respondent’s people, that is, the Abadiamas, are entitled to rely, and did rely, on their possession of this red area in their claim against the 1st defendants/appellants. While conceding that the initial entry by Shell-BP (the 1st defendants/appellants) was lawful, the claim for damages or compensation was clearly not in respect of the lawful entry, but in respect of all the trees, ponds etc. in the red area which had been destroyed. It was, therefore, a misconception to say that the judgement given in favour of the Abadiamas was based on a case which the plaintiff/respondent had not made out in the court below. Having found that the Abadiamas were in actual occupation of the land on which the 1st defendants/appellants carried out their oil prospecting operation the learned trial judge was right in holding that the possessory right of the Abadiamas entitled them, as the owners of the things damaged thereon, to the compensation which they had claimed.

It is now settled that in action in the High Court the parties are bound by their pleadings. Their case stands or falls by the averments in those pleadings and the evidence adduced in support of those averments. Any evidence not supported by the pleadings should be ignored as it goes to no issue. (See Emegokwe v. Okadigbo (1973) 4 S.C. 113 in which all the cases on the point were reviewed with approval).

The corollary to this principle is that judgement should not be given in favour of a party on facts which were not pleaded; it is the same with facts which are pleaded but not canvassed at the hearing.

If the case in hand, the plaintiff/respondent, in his writ of summons, referred to “mining operations carried out by the 1st defendant on the plaintiff’s piece of land.” In his statement of claim, he referred to his people as the “owners in possession of the piece of land” which includes the red area. His averments therein also show how his ancestors came to own the land. In this connection, reference is again made to paragraphs 18 and 20 of the statement of claim which read:

“18. The Gbekebors have claimed ownership of the land in dispute or a portion thereof and on the basis of the claim they have disputed the right of the Abadiamas to claim and receive from the Company compensation for the Company’s operation and damages resulting therefrom as alleged therein.

20. The Gbekebors have never exercised any act of ownership on the land of the Abadiamas and are not entitled to ownership or possession thereof. ”

Even at the hearing, the plaintiff/respondent’s contention throughout was that his people are the owners of all the land in dispute, including the red area. He and his witnesses denied that they were the customary tenants of the Gbekebors (the 2nd and 3rd defendants) by whose authority the 1st defendant/appellant entered the land.

Now, while it is not clear from the way the claim is worded that this is a claim for damages for trespass, there is no doubt, bearing in mind that there is no proof that the 18t defendants/appellants had complied with the restrictions and conditions in the Mining Lease (Ex. D4), that. the claim is analogus to one in trespass. The law applicable will, therefore, be considered on that basis.

A de facto possession of land gives right to retain the possession and to undisturbed enjoyment of it as against all wrong doers. It is not, however, sufficient against the lawful owner. Thus, in Delaney v. Smith (1946) 2 All E.R. where the owner made an oral agreement to let a house to the plaintiff, but before the tenancy began changed his mind and decided to sell the house, it was held, on appeal, that when the plaintiff clandestinely entered the house and was then forcibly ejected by the owner, he had no right to bring an action for trespass against the owner because, in order to succeed, he had to rely on a titled derived from the true owner which he could not do. The following statement of the law as stated by Tucker, L.J. at page 24 of the judgement, and with which we agree, is particularly relevant:

“I think that the judge came to an erroneous decision. It is clear that the plaintiff was in fact founding his claim on the tenancy agreement pleaded by him. It is no doubt true that a plaintiff in an action of trespass to land need only in the first instance alleged possession. This is sufficient to support his action against a wrong doer, but is not sufficient as against the lawful owner, and in an action against a freeholder the plaintiff must at some stage of the pleadings set up a title derived from the defendant. ”

Again, the following observation of Wynn-Parry, J., at page 26 of the same judgement is particularly apposite:

“Now it is to be observed that the plea of liberum tenementum, and the corresponding modern defence that the land was the freehold of the defendant involve a confession and avoidance. The plea admits the possession of the plaintiff, but asserts a title to the freehold. If issue were joined at that stage of the pleadings, the defendant would have to assume the onus of proving the title set up by the plea.”

After referring to the observation of Cresswell, J., in Roberts v. Taylor 1 C.B. 117 at page 126, along the same lines, Wynn-Parry, J., observed further as follows:

“So where a plaintiff by his reply admits the title of the defendant, but pleads a demise from him, there is a true confession and avoidance. The plaintiff is concluded by his confession and must fail in his action unless he proves the case set up by his reply, namely, a demise from the defendant. The onus is thrown upon him to prove the matter set up by way of and it has become an essential pan of his case to do so . . . . . . . . . . . . .

The question then arises: Does a different result flow if, instead of admitting the defendant’s title, the plaintiff by his reply denies the defendant’s title, but as an alternative pleads a demise from him In my judge- .

ment the result is the same. In such an event the plaintiff sets up an alternative case: In the event of his failing successfully to traverse the title of the defendant at the trial he is, to quote again the words of Cresswell, J., in Roberts v. Taylor 1 C.B. 117 at p. 126: ‘put to show how he has a possession in himself consistent with the free hold being in another. ‘

Thus the proof of the demise or agreement for tenancy becomes, equally in such a case, an essential part of the plaintiff’s case, without which he could not succeed.”

In view of the above, it seems to us that, in order to succeed in the case in hand, where the defence of the 1st defendants/appellants is that they entered the red area with the consent of those whom the learned trial judge had found to be the true owners, the plaintiff/respondent must prove that his people are the customary tenants of the true owners. Unfortunately, that is not his case. Both in his pleadings and in the evidence adduced in support, it is the contention of the plaintiff/respondent that the Abadiamas (that is, the plaintiff/respondents) relied on their ownership of the land for their claim for damages. Having failed to prove such ownership, the evidence adduced as to possession becomes irrelevant, particularly as there was abundant evidence that the Gbekebor people were also in possession of part of the land and made use of it, and the claim for damages or compensation against the 1st defendants/appellants should have been dismissed. It is well settled that in an action for trespass, a defendant may not set up a justertii.

He may set up a title in himself, or show that he acted on the authority of the real owner. That is precisely what the 1st defendants/appellants have done in the present case.

There is one other point. Learned counsel for the plaintiff/respondent said that the claim was based on possession and in this respect he tried to make heavy weather of the phrase “owners in possession” used in the statement of claim. Unless words have lost their meaning, an owner in possession, to our mind, can only mean, and does mean, an owner who is in possession of the property concerned. Therefore if the possession of the Abadiamas is not that of an owner as claimed by them, that; possession, unless they are customary tenants, cannot be consistent with the occupation of the true owner or of somebody duly authorised or permitted to occupy the land by the true owner.

There is one final word about the two Nigerian cases to which we have been referred by the learned counsel for the 1st defendant/appellant, (that is,the WACA case and the case decided by Coker, J. (as he then was) in the High Court of Lagos). Although. these two cases dealt with claims for compensation in respect of land acquired by the Government, the principle of law stated therein applied with equal force to the facts of the case in hand. Therefore, as the Abadiamas neither pleaded nor testified that they are customary tenants of the Gbekebors, they cannot maintain a claim for trespass against the 1st defendants/appellants who, as we have said earlier, admittedly entered the land in dispute with the permission of the Gbekebors who have been adjudged to be the true owners.

In these circumstances, we are of the view that the decision awarding the sum of 12,000 as damages against the 1st defendants/appellants should not be allowed to stand. Having so found, it is unnecessary to consider the arguments adduced in support of ground 4 of the grounds of appeal which was filed and argued as an alternative to grounds 1,2 and 3. It is also unnecessary to deal with those adduced in support of the fifth ground of appeal which delt with the findings of fact of the learned trial judge with respect to the possession and identity of the portion of the land in dispute in respect of which compensation was awarded.

We therefore allow the appeal, set aside the judgement of the learned trial judge (including the order as to costs) which he gave against the 1st defendants/appellants in the Ughelli High Court in suit No. UHC/32/67 on 25th November, 1969, and substitute therefore an order that the claim against them be dismissed.

The appeal filed by the plaintiff/appellant against the finding of “the learned trial judge that the Gbekebor people are the de jure owners of the land in dispute, verged yellow in the plan No. AR.728 of (Ex. P3), having been withdrawn, is also dismissed.

Costs to the 1st defendants/appellants are assessed at N123.00 and to the 2nd and 3rd defendants/respondents at N63.00.

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Other Citation: (1974) LCN/1974(SC)