IN THE SUPREME COURT OF NIGERIA
On Friday, the 10th day of December, 1976
Before Their Lordships
GEORGE SODEINDE SOWEMIMO….. Justice, Supreme Court
MOHAMMED BELLO….. Justice, Supreme Court
ANDREWS OTUTU OBASEKI….. Justice, Supreme Court
1. CHIEF WOPNU TENALO
2. CHIEF SAMUEL BASSEH(For themselves and as representing Bomu Village in Gokana, Ogoni Division)
The appeal succeeds and is hereby allowed.
LAND LAW – Ways of proving title to land
Per OBASEKI, Ag. J.S.C. at P. 9, Para. B.
In the High Court of the Rivers State at Port Harcourt, the plaintiffs/respondents claimed by their Writ of Summons and Statement of Claim:
(1)Declaration of title to that piece or parcel of land known as Kporo situate in Bomu Village of Ogoni Division of the Rivers State;
(2)200 (Two Hundred Pounds) damages for trespass; and
(3)A perpetual injunction to restrain the defendant, his agents and all persons claiming or purporting to claim through or under him from interfering with the land except with the leave and licence of the plaintiffs acting through the paramount chief.
Pleadings were ordered and duly delivered.
The principal averments and facts which formed the basis of the claim are contained in paragraphs 4 and 7 of the statement of claim which read as follows:
“(4) The land in dispute is the communal property of the Bomu people including the defendant having acquired it by inheritance from their ancestors who had owned it from time immemorial;
(7) Sometime in 1970, the defendant by himself, his servants and agents without the leave and licence of the plaintiffs broke and entered the plaintiffs’ said land and destroyed economic trees, cultivated some crops, laid waste great portions of the said land, and alienated portions of the said land”.
The defendant/appellant traversed these paragraphs in paragraphs 4, 9 and 10 of the Statement of Defence as follows:
“(4) As to paragraph 4 of the Statement of Claim, the defendant denies that the land aforesaid is the communal property of the Bomu people as a whole, but contends that it is the communal property of the people of the Piaro Family of Bomu in Ogoni Division.
(9) In answer to paragraph 7 of the Statement of Claim, the defendant denies any act of trespass but maintains that (his entry) the entry is in exercise of their right of ownership and possession.
(10) In further reply to paragraph 7 of the Statement of Claim, the defendants state that the land is utilised by the members of Bomu Co-operative Society who developed it as a community farm since before the civil war for which subsidy is now paid by the Government of Rivers State as was the case in the time of the defunct Eastern Nigeria Government”.
Evidence was adduced by both parties and at the conclusion of the hearing, Pepple, J. on the 10th day of July, 1974 delivered a considered judgment in favour of the plaintiffs/respondents in respect of the claim for declaration of title and injunction only. He dismissed the claim for damages for trespass.
Being aggrieved by the decision in respect of the claim for Declaration of Title and Injunction, the defendant/appellant has brought this appeal. Eight grounds of appeal were filed but only four, i.e. grounds 1,2, 4 and 7(ii) were argued.
These grounds were directed at establishing that the respondents did not discharge the burden of proof to entitle them to judgment in respect of the two claims and they are as follows:
The learned trial judge erred in law and on the facts and misdirected himself when he found that the plaintiffs’ claim to title succeeds and accordingly granted the declaration of title claimed – P.83, line 23.
(a) The plaintiffs have not proved title according to native law and custom in respect of the land in dispute nor have they proved that they are title owners of the same in fee simple absolute to entitle them to the relief granted;
(b) The plaintiffs have not adduced sufficient evidence of acts of ownership numerous and positive over a long period to enable the court to hold that they are the owners of the land in dispute;
(c) The evidence of acts of ownership and possession adduced by the defendant is sufficiently strong to negate the plaintiffs’ claim;
(d) Issues having been joined at the close of pleadings on ownership of the entire Kporo land claimed by the Banigo people, a declaration of title to such land or to part thereof cannot be granted in favour of the plaintiffs in the circumstances of this case unless the Banigo people are joined as parties to the action or called as material witness in the case.
The learned trial judge erred in law and on the facts in holding that the land in dispute is communal land when the plaintiffs have not proved such averments to the standard required by law, and when the evidence adduced by the plaintiffs in this regard was scanty, vague, contradictory and very unsatisfactory.
Having made a finding of fact that the whole of Kporo land is the communal land of the Bomu people and that the parties to the action are members of the Bomu community, the order granting declaration of title of the land in dispute to the plaintiffs is inconsistent with the findings of the learned trial judge.
The learned trial judge misdirected himself when he held as follows:
“(ii) Examining the evidence further, I find the plan made by the present defendant and his/co-defendants in the 1968 suit and tendered as Exhibit F most revealing. In it there are 20 plantations belonging to ……….. Surely, these are indications of communal ownership”.
(a) There is no evidence that the land used for the plantations or for the old settlement, or for the Army Church were granted by the Bomu community for such purposes or that the church, the plantations and the buildings aforesaid are communally owned.
(b) There is sufficient evidence on record to show that all the people occupying the land aforesaid did so by the permission of the defendant’s family who are themselves as well as the occupiers, Ogonis.
The learned counsel for the appellant after drawing our attention to the evidence adduced, submitted in support of the above grounds, that neither the traditional evidence nor the evidence of acts of ownership adduced by the plaintiffs/respondents and their witnesses discharged the onus of proof to entitle the plaintiffs/respondents to the grant of a declaration of title and injunction.
The main question raised by these grounds of appeal therefore is one of proof whether or not the plaintiffs/respondents discharged the burden of proof placed on them by law to establish title to the land called ‘Kporo’ which they claim as communal land. The appellant’s contention, shortly put, is that the evidence on which the declaration was granted did not prove any title let alone exclusive title in the respondents. The respondents’ counsel did not concede this point and his reply was that the evidence led was sufficient to justify the judgment.
It is settled law that a plaintiff in a claim for a declaration of title must succeed on the strength of his case and not on the weakness of the defence (i.e. his opponents’ case) See Kodilinye v. Mbanefo Odu (1935) 2 WACA 336. Nwankwo Udegbe & Ors. v. Anachuna Nwokafor & Ors. (1963) 1 All N.L.R 417 at 418). A plaintiff is however entitled to take advantage of any evidence adduced by the defence which tends to establish his title and support his case. (See Josiah Akinola & Anor v. Fatoyinbo Oluwo and 2 Ors. (1962) 1 All N.L.R. 224 at 225).
The appellant having joined issue with the respondents on the question of ownership of Kporo land, the burden of proof to be discharged by the respondents was a very heavy one.
We pause to examine the facts.
The facts which the learned trial judge accepted and found sufficient to discharge the burden are:
(1)The assertions of the 1st plaintiff, 2nd plaintiff, Kera Demagbara (PW2) and Vikpeya Gbaranwia (PW5) that Kporo land and bush is communally owned;
(2)That by custom, at any farming season, the 1st plaintiff as paramount chief of the people of Bomu gives order for people to go into Kporo bush to cut sticks to support their yams;
(3) That title to Kporo land and bush has descended to him from his ancestors and that there were 8 paramount chiefs before him since he came to know the land;
(4) That no Bomu man is allowed by custom to enter Kporo land and cut any stick or plant thereon or make use of the land without the consent of the Paramount Chief;
(5) That the appellant without consent and in the face of protest from the Paramount Chief (1st plaintiff) and people of Bomu entered Kporo bush and established community farming thereon; and
(6)That the plan Exhibit F shows features (20 plantations, old settlements and Army Church -) which prove the communal ownership claimed by the plaintiffs/respondents.
We observe that the evidence on which the learned trial Judge found and held that:
‘Plaintiffs’ root of title is certainly in inheritance from their ancestors. I am satisfied that Kporo bush is Bomu communal land and that Tenalo, 1st plaintiff’s father and Paramount Chief in his time did control the use of Kporo bush. Whether or not some of the people disliked 1st plaintiff and would prefer to be led by defendant, there is no evidence that the communal nature of Kporo bush has changed”.
is very scanty and insufficient to support and justify a declaration of title to ‘Kporo’ land in favour of the plaintiffs. The relevant portions of the testimony of the witnesses who testified on the issue of ownership in support of the respondents’ case on which the learned trial judge based his judgment will now be set out to show the absence of any probative value in them.
The 1st plaintiff’s evidence on the issue is as follows:
“Kporo land belongs to the entire Bomu community. This part of Kporo in dispute belongs to Bomu community. According to Bomu custom, the elders of the village and I must be informed before anything is done on the communal land. Defendant planted palm trees on the land in dispute without my permission and that is why we have taken this action against him. Defendant also planted cassava on the land. These are the only things he did on the land.
I am the ninth Chief since that land was known to me. We inherited it from our forefathers. Besides defendant, no one has ever disturbed our ownership of the land.
During planting season, the Bomu people cut sticks from that bush to prop yams. We also harvest palm fruits from there. When it is time for any of these activities, I give the order to the villagers to go on the land”.
The corroborative evidence of 2nd plaintiff also reads:
“The land is Bomu communal land. Anybody who wishes to go on the land to do anything must obtain leave of the Paramount Chief of Bomu, the 1st plaintiff”.
Kera Demagbara (PW2) in his testimony gave evidence in the same manner when he added:
“The land belongs to the people of Bomu. The paramount chief is the person who has control over this land … Nobody can go on communal land and do anything without the authority of the paramount chief. The community collects firewood from this land in dispute and some section of it is used for farming.
I heard that defendant was sued by the Banigo family in respect of this land. I myself have not been sued in respect of it. I have not farmed on this land. It is not true that defendant gave me a portion of this land to farm in 1967 in the name of Bomu community farm. In that year, I farmed at Ghana. I did not farm on the land in dispute and defendant gave me no ticket”.
And finally, the evidence of Vikpeya Gbaranwia (PW5) on this issue reads:
“I grew up to see the bush called Kporo at Bomu. ………. Defendant went there and claimed that he is the owner of the land and therefore court action was taken against him. I know that bush. It does not belong to any single person. It is communally owned by the people of Bomu”.
Of those who testified on the issue in support of plaintiffs/respondents’ claim, the 1st plaintiff was the paramount chief of Bomu, the 2nd plaintiff was a chief of Bomu but not the next in rank. Kera Demagbara (PW2) was a fisherman and a native of Bomu and Vikpeya Gbaranwia (PW5) was a farmer living in Bomu.
We also observe that the pleadings and the evidence have distinguished themselves more by the material facts they have omitted than by the facts pleaded or led in evidence before the court.
It is now settled law that there are 5 ways in which ownership of land may be proved and only two of the 5 methods were adopted by the respondents in this case.
(1)Proof by traditional evidence (Abinabina v. Chief Enyimadu (1953) AC 207 at 215-216); and
(2)Proof by acts of ownership. This is normally provided by acts of person or persons claiming the land such as selling, leasing, renting out all or part of the land or farming on it or on a portion of it or otherwise utilizing the land beneficially; all evidence of ownership provided they extended over a sufficient length of time and are numerous and positive enough to warrant the inference that he is the true owner, Ekpo v. Ita, 11 NLR 68 at 69.
We find however in the pleadings and the evidence a total absence of facts about (1) the founding of Bomu village in general and Kporo, the land in dispute, in particular; (2) the persons who founded the land and exercised original acts of ownership, and (3) the persons who have held title or on whom title has devolved in respect of the land since the founding before the 1st plaintiff/respondent acquired control of the land on behalf of the community.
All these facts which are necessary for the proper determination of the issue raised are not provided by the sweeping assertion that “the land is communal land of Bomu people”. This leaves the traditional evidence in the air and it is fatal to plaintiffs’ claim (See F.M. Alade v. Lawrence Awo (1975) 4 SC 215 at 229. The demeanour of witnesses giving traditional evidence is no test of the truth or falsity of the evidence.
That statement that the land is the communal land of Bomu people can only be a conclusion or finding by the court after proper assessment and evaluation or appraisal of the evidence adduced before it. The proper approach is to consider the activities of the parties in the exercise of their rights and decide whether it accords with the evidence of traditional history (Adenle v. Oyegbade (1967) NMLR 136 at 138).
We are also unable to see any evidence of acts or series of acts of ownership exercised by the Bomu community or by the 1st plaintiff/respondent as paramount chief on behalf of the community on the Kporo land or Kporo bush to warrant any presumption that the Kporo land is the communal land of the Bomu people. Not one of the witnesses testified that he cut sticks from the bush to prop up his yams or that he cut firewood and harvested palm fruit from the palm trees on the land with the permission of 1st plaintiff/respondent in accordance with the custom alleged.
A general statement of custom of the people without evidence of the activities of the people in support of the custom is of no evidential value in proof of acts of ownership.
The other 3 modes of proof of ownership of land which we do not consider relevant to this appeal but which are nevertheless settled by law are:
(1)Proof by production of document of title which must be authenticated;
(2)Proof of ownership by acts of long possession and enjoyment in respect of the land to which acts are done.
Under section 145 of the Evidence Law, while possession may raise a presumption of ownership, it does not do more and cannot stand when another proves good title (see Da Costa v. Ikomi (1968) 1 All NLR 394 at 398).
(3)Proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute may rank also as a means of proving ownership of the land in dispute. (See Section 45 of the Evidence Law (see Higgs v. Nassauvian Ltd. (1975) AC 464). In that case which went on appeal to the Privy Council from the Bahama Islands, the Board commented at p. 474 (Sir Harry Gibbs, delivering the judgment of the Board) as follows:
“It is clearly settled that acts or possession done on parts of a tract of land to which possessory title is sought may be evidence of possession of the whole. In Lord Advocate v. Lord Blantyre (1879) 4 App. Cas 770,791, Lord Blackburn said:
“And all that tend to prove possession as owners of parts of the tracts tend to prove ownership of the whole tracts, provided there is such common character of locality as would raise a reasonable inference that if the barons possessed one part, they possessed the whole. The weight depend on the nature of the tract, what kind of possession could be had of it and what the kind of possession proved was”.
Having found a total absence of evidence of acts of ownership and possession in the evidence adduced by the respondents and their witnesses, the learned trial Judge accepted the feature shown on the Plan Exhibit F (tendered by the appellant through the plaintiffs’ 6th witness who prepared it in 1959 for the appellant as defendant in Suit P/147/58 instituted by Banigo family in respect of the same piece of land). He assessed and evaluated them and came to the conclusion that they constitute evidence in support of respondents’ claim that the land is communal land of Bomu people. More particularly, the learned trial judge in his judgment said:
“Examining the evidence further, I find the plan made by the present defendant and his co-defendants in the 1958 suit and now tendered as Exhibit F most revealing. In it, there are 20 plantations belonging to Ogoni people of which only three belong to the Piaros namely, Frank Piaro, Kara Piaro and Sunday Piaro. The ages of the plantations of Frank Piaro and Sunday Piaro are not shown on the plan but that of Kara Piaro is shown as having been built in the year 1945. This date makes interesting comparison with Nuta’s plantation built in 1935, Gbine Kakiri’s plantation built in 1940 and Sogan Kakiri’s plantation built in 1895”.
Apart from these individually owned plantations, on the plan is shown mango and coconut trees in old settlement of Bomu people and “Christ Army Church of Bomu people”. Surely these are indications of communal ownership”. From all this evidence, I am satisfied that whatever may have led Chief Banigo to take action, their action in suit No. P/147/58 against Piaro family, it was not in fact Piaro family contending with him over the land but the entire Bomu community represented by people from various families under the leadership of Deko Piaro.
It would appear then that the defendant now seeks to take advantage of Chief Banigo’s error”.
We are unable to accept the opinion of the learned trial judge that the true import of the features appearing on the face of the plan is that they are indications of communal ownership. A proper appraisal of the evidence appearing ex facie on the plan leads to the opposite conclusion that if ever the land once had the character of communal ownership, it has lost it by partition to the individual plantation owners. The existence of coconut trees and mango trees without evidence that they belonged to the people of Bomu as a community jointly cannot lead to the conclusion that the land is communal land.
The 6th plaintiffs’ witness’s testimony on the features found by him on the land in 1958 virtually destroyed the case of the plaintiffs. He prepared the Plan Exhibit A showing the land in dispute in these proceedings as verged pink for the plaintiffs/respondents in 1973). It turned out that he too had prepared the Plan Exhibit E for the Banigo family in 1959 and the Plan Exhibit F for the appellant, the parties to the case Suit P/147/58.
Part of his evidence in cross-examination reads:
“The Banigo family was claiming all the land shown on Exhibit E. The differences between Exhibit A and Exhibit E are these. In Exhibit A the land claimed by the plaintiffs is more than that claimed by the Banigo family in Suit No. P/147/58. The difference is not much however.
The area verged yellow in Exhibit A is a smaller part of the area verged pink in Exhibit E.
The area verged pink in Exhibit A is nearly the same as the area verged pink in Exhibit E.
I would say that the land now being claimed by Bomu people has once been claimed by Banigo family of Bonny. I see the Plan No. JJ.12A/59. It was made by me for the defendants in the Banigo case (Admitted as Exhibit F).
Exhibits E, F and A are almost the same.
The land verged pink in Exhibit A is within the land verged green in Exhibit F. So also is the land verged yellow in Exhibit A” (Underlining is ours).
We observe that the learned trial judge misconstrued the action by Banigo family against Piaro family as evidence of a move by the Bomu people to recover parts of Kporo land which their ancestors granted to the Banigo family when in his concluding remarks on the claim of title he said:
“Evidence reveals that defendant apparently spearheaded a move by the Bomu people to recover parts of Kporo land, land which their ancestors granted to the Banigo family. As a result, the people must look up to him as a leader and probably as a redeemer.
But the land sought to be recovered was given out as communal land and when it is re-entered it must be re-entered as communal land. There is no doubt that the agricultural project of defendant and his cooperative society are laudable ventures, but he cannot by means of them claim communal land to be his own. I find that plaintiff’s claim to title succeeds”. (Underlining is ours).
This is a non-sequitur, and we are unable to find support either in the pleadings or in the evidence that the land in dispute was granted to Banigo family as communal land and that the defendant has spearheaded a move to recover it from the Banigo family. The evidence provided by paragraph 2 of Exhibit C1 the Statement of Claim in Suit P/147/58 shows that the land Kporo was granted to Banigo family by Chief Kakiri of Bomu but witnessed and sanctioned by Odeh the then King of Bomu. Similarly, the adjoining land called Dorku was granted by Chief Boh of Bomu and witnessed and sanctioned by Odeh the then King of Bomu.
The conclusion therefore that the land was granted as communal land to Banigo family is not supported by the evidence.
The conclusion that the land was granted to Banigo family is also at variance with the pleadings and the case of plaintiffs more especially set out in paragraph 5 of the Statement of Claim which reads:
“The plaintiffs have been in undisturbed possession and have exercised maximum acts of ownership over the said piece of land by cutting trees and palm trees therefrom, by residing on part of it, by successfully passing laws in respect of usages of the said land and in diverse other ways utilising the same as owners in their own right since they succeeded their predecessors in title”.
It is quite obvious to us that the learned trial judge finding the evidence adduced by the plaintiff deficient in probative value, held, erroneously in our view, that the evidence adduced in support of the defence proved the claims for title and injunction put forward by the plaintiff. It is settled by several judicial authorities that parties are bound by their pleadings and will not be allowed to put up a case different from that set up in the pleadings. It was never set up in the pleadings that the land in dispute was granted by plaintiffs’ ancestors to the Banigo family. Rather, the case of the plaintiffs/respondents in their pleadings was that they were owners in possession exercising maximum acts of ownership.
We agree with the submission of the learned counsel for the appellant that the respondent failed to prove their claim.
We find substantial merit in Grounds 1, 2 and 7(ii). The appeal succeeds and is hereby allowed.
The judgment including the orders as to costs delivered by Pepple, J. in Suit No. PHC/23/71 on the 10th day of July, 1974 is hereby set aside and in its place we make the following orders:
(1)The claim for Declaration of Title fails and is hereby dismissed;
(2)The claim for an order of perpetual injunction also fails and is likewise dismissed; and
(3)The plaintiffs shall pay the defendant costs in the court below assessed at N200.00.
This shall be the judgment of that court.
The plaintiffs/respondents shall pay the defendant/appellant costs of this appeal assessed at N220.00.
Chief Obafemi Awolowo, (with him Mr. Dele Awoniyi and Mr. R.W. Nnwoka)…..For Appellant
Chief I.A. Idamiebi Brown…..For Respondent