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3RD MARCH, 1958.

F.S.C 62/1957

                                                                                        3PLR/1958/12  (FSC)





SIR HENLEY COUSSEY, AG. F.J. (Read the Judgment of the Court)



  3. D. N. NDIGBO (of Umudasiafor)



(for Umu Obi Osakwe)




  2. P.D. OKWUDI

(For and on behalf of Umu Osakwe family, Asaba)



EVIDENCE – Presumption of ownership in favour of person in possession – Sec 145 Evidence Ordinance – Application of

LAND LAW – Possession – Presumption in favour of person in possession to be owner – Section 145 Evidence Ordinance -Application of

PRACTICE AND PROCEDURE – APPEAL – Findings of fact by trial judge – Attitude of appellate court.



Mr. H. U. Kaine -for Appellants

Mr. E.A. Ekeruche -for respondents



COUSSEY Ag. F.J. (Delivering the Judgment of the Court):

This is an appeal from a judgment of the High Court of the Warri Judicial division in two suits which were consolidated for hearing by order of the trial Judge.

In suit No.W/41/52 which was instituted in the Asaba Town Native Court on the 3rd April, 1954, the plaintiffs Obi Awolo and others who will be referred to in this judgment as the appellants, claimed against the defen­dant Obi Okwudi a declaration of title to a parcel of land called Anindida situate at Asaba-Benin Road in Asaba Division. In Suit No.W/46/54 which was instituted in the same Native Court on the 30th April, 1954, the plain­tiffs, Obi Okwudi and two others for and on behalf of the Umuobiosakwe family of Asaba, who will hereinafter be referred to as the respondents, claimed against the defendant Obi Awolo as representing the Umuodasiafor family, a declaration of title to land situate at Asaba known as Anindida, £100 damages for trespass by the defendant (the appellant) and his people on the land and an injunction from further entry on the said land.


According to the plans produced by each of the parties the respondents claimed a declaration to a larger area, edged green on their plan, but which included the area of land, edged pink on their plan, as to which the appel­lants also sought a declaration against the respondents. Nearly half the land claimed by the respondents on its eastern side is also claimed by Odita Idegwu and Mary Ijeh respectively and that fact has extended the issues in the suits.


To summarise the cross-statements of Claim and Defences delivered by the parties, the appellants say they have been owners in possession of the land they claim from time immemorial, their people and tenants farming thereon undisturbed until the year 1949/1950 when, upon the Shell Com­pany applying for a portion of the land on lease, the respondents for the first time held themselves out as owners thereof. The appellants averred that the respondent Obi Okwudi had at one time acted as the caretaker for Odita Idegwu whose land bordered the eastern boundary of the appellants’ land and that the respondents had included in the land for which they claimed title in the suit, portions of lands belonging to Odita Idegwu as well as Mary Ijeh and the Idumu-Odikpe people. The appellants further averred that Odita Idegwu had been successful against the respondents in litigation con­cerning her land.


The respondents, on the other hand, averred that the land in dispute was founded by their ancestor Obi Osakwe at a time beyond memory, “that from time immemorial they and their people had exercised maximum acts of ownership thereon by farming and letting tenants into the land, that they had resisted effectively claims that had been brought respecting the land by the appellants and their allies such as Ada Nwabueze and Obi Mary (Mary Ijeh)” who is in boundary with the respondents’ on the south-eastern por­tion of the land in dispute, and they further averred that as owners in posses­sion the respondents in 1949 let portions of the land to the Shell D’Arcy De­velopment Corporation and that then for the first time the appellants laid claim to the land resulting in the present litigation.


The respondents further averred in the Statement of Claim suit W/46/54 that at an arbitration the Asaba Native Authority Council had awarded the i land in dispute to the respondents, but that the appellants, being dissatisfied with the findings of the Council had instituted the present action. As to this allegation the appellants by their defence alleged that during the arbitration they objected to the proceedings owing to the hostility of some of the arbit­rators. The respondents did not plead the alleged award as an estoppel.


In a lengthy judgment the learned Trial Judge reviewed the appellants’ evidence and the respondents’ evidence on the conflicting claims to title and proceeded:­


“From all the evidence it is clear that the real bone of contention is not the land as such, but the rents paid by the Shell Company and deposited in the Native Council Treasury. There was very lit­tle to choose between the case put forward by either side, and I thought the witnesses called on either side and who claimed they had been using the land as tenants of one side or the other equally unreliable. The evidence of the old man Nwajei and of the Asagba were palpably biased and I think it would be unsafe to act on them.”


The learned Judge then proceeded to review what he described as a few undoubted facts in the case which, in his view, bore witness to the activity of the respondents on the land in dispute and the surrounding area whilst he could find no evidence of comparable weight in favour of the appellants.


Those facts will be considered later in this Judgment; it is convenient to state here that the appellants’ claim was dismissed because in his opinion they had failed to satisfy the learned Judge as to their title to the land, while on the respondents’ claim, for the reasons he had stated earlier and which are the facts next to be considered, the learned Judge held that the balance of probabilities is in favour of the respondents being in possession of the land they claim. Applying section 145 of the Evidence Ordinance Cap.63 the learned Judge in effect held that the presumption is that the respondents are in possession of the land as owners until the contrary was proved by the ap­pellants, which they had failed to do. The learned Judge concluded his judg­ment: “I am of opinion that the weight of evidence is in favour of the defen­dants (respondents) and I enter judgment for them against the plaintiffs (the appellants) for declaration of title to the land they claim as set out in their plan Exhibit “A.”


The following are the facts which the learned Judge reviewed as weigh­ing the probabilities in favour of the respondents’ claim:­


  1. If Odita Idegwu sued and evicted Udengene and other tenants of Obi Okwudi from the land in dispute it is evidence that Obi Ok­wudi (respondent) was in possession of it, although Odita Idegwu said Obi Okwudi was in possession as her caretaker. The learned Judge said he did not believe the evidence that Obi Ok­wudi was caretaker for Odita Idegwu.


  1. The members of the Asaba Council who would be well informed as to land holding in Asaba, after visiting the land and careful en­quiry, found that the area in dispute belonged to the respon­dents’ family.


  1. The important fact that the respondents swore a boundary oath and thereupon the Idumu-Odikpe people conceded to the re­spondents a strip of land on the south-east of the land in dispute is strong evidence that the respondents were neighbours of the Idumu-Odikpe people and, therefore, in possession of the land in dispute.


  1. That evidence that Mary Ijeh and Odita Idegwu had each taken action against the respondents’ tenants also shows that the re­spondents had asserted claims to the areas claimed by these women, which, in the case of Mary Ijeh, is an area adjoining the land in dispute, and in the case of Odita is the area in dispute or land adjoining it.


From this Judgment the appellants’ appeal and the grounds of appeal may be thus summarised:-


(a)     The Judgment is against the weight of the evidence.


(b)     The learned trial Judge was wrong in law to grant the respon­dents a declaration of title in their action after holding that “there was very little to choose between the case put forward by either side, and he thought the witnesses called on either side who claimed they had been using the land as tenants were equally un­reliable, and


(c)     The trial Judge was wrong in law to grant the declaration of title merely because he was of opinion that “the balance of prob­abilities is in favour of the respondents being in possession of the land they claim.”


And they prayed that judgment be entered for them for a declaration of title in the main action, suit No. W/46/54, against the respondents.


In support of the appeal Mr. Kaine submitted that the acts of ownership upon which the respondents relied to support their case for possession of the land were placing the tenants Udengene and others who paid tribute. He pointed out that before these actions were instituted in 1954 the tenants Udengene, Okeleke or Nwokeke and Ikegbunem had been evicted from the land in dispute by an order of the Asaba Town Native Court dated 15th May, 1953, following a judgment by the same Court against them dated 14th Oc­tober, 1952, ordering them to quit the land within six months of that date. He pointed out that the respondents were aware of the judgment and order against these tenants on the land; that they stood by and no appeals were taken from the decrees of the Native Court.


As to the findings of the members of the Asaba Council in 1950 Mr. Kaine pointed out that the award in favour of the respondents, although pro­tested against by the appellants, was based on the statement of Udengene and other tenants that the respondent Obi Okwudi had placed them on the land. As stated above these tenants were evicted before suit by the decrees of 14th October, 1952, and 15th May, 1953, and, if that award was correctly based on the statements made by the tenants in 1950 who said they were in possession for the respondents, it had no virtue in 1954 at the time these con­solidated actions were brought as at that time Odita Idegwu had already ter­minated the caretakership of Obi Okwudi over her land and had evicted his tenants above referred to. Mr. Kaine supported his argument by referring to Exhibit F a judgment for delivery of possession of the land which Ada Nwabueze had placed in the care of the respondent Obi Okwudi on the death of her father Nwabueze, a former caretaker, and to Exhibits G and H already referred to, the orders of the Native Court against the respondents’ tenants.


As to the boundary oath sworn to between the respondents and the people of Idumu-Odikpe, Mr. Kaine argued that the strip of land thereby af­fected is outside and to the south of the land now in dispute and that the ap­pellants were not parties to the oath swearing and cannot be bound by the conduct of the Idumu-Odikpe in conceding the land to the respondents. Mr. Ekeruche for the respondents, the plaintiffs in suit No. W/46/54, contended that Odengene and other tenants of the respondents were not evicted from the site shown on the respondents’ plan, but from another area not shown on the plan. He pointed out that the actions taken by Odita Idegwu Exhibits F, G and H all relate to land situate at Uzoigwe, Asaba, and that Uzoigwe has not been identified by evidence as land claimed by Odita Idegwu or any part of the area in dispute. He submitted that after the evic­tion of the respondents’ tenants Udengene and others the respondents still remained in possession of the land by their kinsman Ogana Igwo their fourth witness.


Turning to grounds of appeal (b) and (c) Mr. Ekeruche argued that as it was difficult for either party to prove a cast-iron case the learned trial Judge rightly considered the probabilities and rightly based his judgment on the finding of the Asaba Native Council as to occupation of the land and on the act of ownership of the respondents by asserting a title to the southern part of the land as against the Idumu-Odikpe people. Swearing a fetish oath he submitted was strong evidence in support of the respondents’ case, for such an oath is not lightly taken in any circumstances in African life.


As to the appellants claim for a declaration Mr. Ekeruche submitted that no reliable acts of ownership had been shown by the appellants to entitle them to judgment and that the evidence of their witness Mary Ijeh con­tradicted the appellants’ case as to their northern boundary as Mary Ijeh claimed the clay land to the south of the Ayitu river whilst the appellants, both by their statement of claim and in evidence, claimed that their land ex­tended to the Ayitu river.


Having set out at some length, I fear, the issues to be resolved it will be wise to consider the principles by which an appellate Court should be guided where the trial Judge, without a jury, has arrived at findings of fact.


In the first place it should be borne in mind that possession of land held by native tenure is found in practice to be one of the most difficult issues to decide in a country where its proof usually depends necessarily upon oral evidence.


Next, an appellate Court is always conscious of the great weight at­tributable to the opinion of the Judge who has heard and seen the witnesses; but an appeal is a rehearing and the Court is not relieved from the duty of examining the whole of the evidence adduced on both sides and of deciding according to the truth of the matters in issue. The principle is stated thus in Watt v. Thomas 1947, 1, All E.R. p. 582. “The appellate court either because the reasons given by the trial Judge are not satisfactory, or because it unmis­takably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then be at large for the appellate Court.” This is the third of the princi­ples enunciated by Lord Thankerton in the above case at p.587. It should be remembered also that the grant of a declaration of title is in the wise discre­tion of the Judge exercising the equitable jurisdiction of the Court.

Now section 145 of the Evidence Ordinance Cap. 63 which the learned Judge applied provides: “When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.” In a country where disputes over land frequently result in bloodshed, this presumption in favour of the person in possession is of the greatest practical importance.


Next, looking at the plans it will be noticed that all the land to the west of the area in dispute is admittedly that of the appellants. Odita Idegwu and Mary Ijeh the fourth and fifth witnesses for the appellants who figure so prominently in the evidence were brought into the dispute because they con­tend that the respondents have included portions of their land in their claim to the land in dispute. Those portions are shown outside and to the east of the appellants’ plan marked “land of Idegwu” to the north-east and “land of Mary Ijeh” on the south-east. The respondents maintain that Odita Idegwu has no land whatever in the vicinity but they show as the eastern boundary on their plan Exhibit A, land of Umuojife who, according to their evidence is Mary Ijeh. Mary Ijeh and Odita Idegwu testify to their boundaries as shown on the appellants’ plan Exhibit B and they both give important evi­dence as to their relations with the respondents. A dispute is now pending between the respondents and Mary Ijeh who says the respondents have en­croached 40 yards into her land from the Agbono tree to the Egbu tree on the south-east.


In my opinion, the most important factor in this case is the evidence of Odita Idegwu, supported as it is by records of the Native Court, that Chief Nwabueze was appointed caretaker of her father’s land shown on the appel­lants plan and that after Nwabeuze’s death, his daughter Ada appointed the first respondent Obi Okwudi caretaker thereof. I fail to understand why the learned Judge disbelieved the evidence that Obi Okwudi was a caretaker for Odita Idegwu. Exhibits F, G and H afford documentary corroboration of this caretakership and it is evident to me that it was from his vantage point as caretaker over a number of years, until his trust was terminated by Odita Idegwu, that Obi Okwudi had the opportunity, which he seized, to assert a claim of ownership to Idegwu’s land and westwards to the limits now claimed by the respondents and also southwards to dispute land with the Idumu­Odikpe people. It should be remembered that in customary tenure a caretaker, particularly one over a number of years, is regarded as owner for all practical purposes of the land he has charge of. The fact that the Idumu­Odikpe conceded land to the south is not, on the evidence, proof that the land so conceded was in the ownership of Obi Okwudi’s family in their own right. It was not pleaded by the respondents as an estoppel or otherwise; in fact it is not mentioned in their pleadings and, in my opinion, this oath taking incident does not affect the appellants.

Turning now to Exhibits G and H the respondents do not deny that the tenants Udengene and others were placed on the land by the respondent Obi Okwudi but evicted before the two suits with which we are concerned were instituted in the Native Court. The only point to be cleared up is the area from which they were evicted. I should have thought it was sufficient to took at the respondents’ plan where Udengene’s farm and contiguous to it “Camp of Udengene, defendants’ tenant” are shown by the respondents’ instruc­tions, towards the north-east of their plan which, when superimposed on the appellants’ plan is found to be outside and to the east of the appellants’ claim and within land claimed by Odita Idegwu. The respondents’ contention that Udengene’s farm and the sites affected by Exhibits G and H, the orders of the Native Court, are at Uzoigwe and are near the line of the telegraph poles to the south of the land may be dismissed in a few words. If the respondents could have shown occupation to the south by one of their tenants the assumption is that they would have done so, but there is no such indication on their plan and, secondly, there is the evidence of the second respondent that Uzoigwe means a road along which telegraph poles are fixed. Those tele­graph poles run along the Benin-Asaba road. Access to the land in dispute is by the Benin-Asaba road. In the Writ of Summons in the present suit No. W/ 41/54, the appellants describe Anindida land as situated at Asaba-Benin road. In the light therefore of Udengene’s own evidence there can be no doubt in my mind that he was evicted from the area shown on the respon­dents’ plan.


But putting aside for the moment Udengene’s and his co-tenants’ occu­pation, what possession of the land claimed by the appellants by their plan and writ have the respondents proved? On the respondents’ plan no farm whatever is shown within the area claimed by the appellants as having been made by the respondents and this is not simply an omission. Mr. Ekeruche could not refer to any evidence specifically to support the respondents’ pos­session except that of Ogana Igwo who stopped tapping palm trees in 1949 on the land.


There is, therefore, no presumption of ownership by possession in favour of the respondents. No user of the land was in fact proved by them ex­cept in the most general terms. There is no admission by the appellants of such possession and, therefore, with the greatest deference to the learned and careful Judge who tried the case I have come to the conclusion, after de­liberating over the evidence, that a declaration of title should not have been awarded to the respondents. The respondents did not prove, as pleaded by them, that they had effectively resisted claims brought by Ada Nwabueze and Mary Ijeh.


As to the claim of the appellants, in my view this is not a case of no evi­dence of possession either way, nor is the evidence equally balanced. The re­spondents themselves indicate on their plan, over a considerable area of the land in dispute, farms of the appellants edged purple; one is marked as a 1953 farm, four as 1954 farms and a camp as built in 1950. Apart from these admissions of possession there is the evidence of possession by the appel­lants excluding the tenant witnesses whose evidence the learned Judge re­jected, and there is the evidence of three neighbouring owners who testify to owning the adjoining lands and who prove their boundaries with the appel­lants.


That the adjoining owners, Mary Ijeh and Odita Idegwu, were drawn into the litigation, not as vultures to a carcass, as the learned Judge thought, but because their lands were claimed by the respondents, is no reason, in my opinion, for discrediting their evidence as the learned Judge appears to have done.


I consider that the appellants offered evidence in proof of possession such as the character and condition of the land in dispute permitted, that the presumption of ownership goes with such possession and that the respon­dents did not displace that presumption. In my opinion the appellants were entitled to their declaration of title as against the respondents.


Without going into a greater analysis of the evidence I think enough has been said to demonstrate that, viewing the respondents’ evidence in its most favourable light, the conclusions of the learned Judge were unsatisfactory.


I would, therefore, allow this appeal with costs. I would set aside the judgment entered for the respondents in suits Nos.W/41/54 and W/46/54, and enter judgment for the appellants in suit No. W/46/54 and judgment for the appellants, plaintiffs in the court below, in suit No. W/41/54 for a decla­ration of title to Anindida land as delineated and edged pink on the appel­lants’ plan, Exhibit B.


It will be observed that the appellants do not claim by Exhibit B, land up to the River Ayitu.


DE LESTANG, Ag. F.C.J.: I concur.


ABBOTT, F.J.          I concur.


Appeal Allowed



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