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3RD JUNE, 1957.






MYLES JOHN ABBOTT, Ag. F.J. (Read the Judgment of the Court)



LAND LAW – Adverse long possession – Effect on title to land.

PRACTICE AND PROCEDURE – EVIDENCE -Res judicata – Proceedings relied on by party of quasi-criminal nature – Whether can sustain plea of res judicata.



Fakayode (with him Olowofoyeku) -for Appellants.

Agbaji (with him Fregene) -for Respondent.



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

In this appeal, the plaintiffs/appellants seek the reversal of the decision of Stuart, J., in the Benin Judicial Division of the Western Region High Court, dismissing their claim against the defendant-respondent.


The plaintiffs who sue, as elders of Sabongidda (Evbiobe) Ora in Kukuruku Division in Benin Province, on behalf of themselves and the people of Sabongidda (Evbiobe) Ora, put their claim under five heads, as follows:­

(1)     Declaration of title to land between Sabongidda village and the River Ose known as Ugbubesi, Atoruru and Ugbose “and more particularly that piece of land known as Sabongidda Farming Land” as shown on Government map MFR 26 (put in as Exhibit “B” in the Court below).

(2)     Rent of £4.10.0. in respect of the defendant’s use “of a portion of ‘Sabongidda Farming Land’ by planting cocoa and other perma­nent crops as per agreement dated 26/7/47.”

(3)     £500 damages for trespass “in that the defendant has extended his cocoa and other permanent crops farm to the extent of 60 native acres or plots roughly beyond the limit set in the Ora Native Court Judgment in Suit No. 95/48 dated 27/4/48.

(4)     Possession of the 60 native acres specified in head (3).

(5)     An injunction to restrain the defendant from further trespass. The action began in the Ora Native Court and was transferred to the then Supreme Court of Nigeria pursuant to Section 28(1) of the Native Courts Ordinance.

It emerged during the trial that although the original claim for declara­tion of title purported to embrace the whole of the Sabongidda Farming Land edged green on Exhibit “B,” the plaintiffs were actually claiming title to two very much smaller pieces of land – those edged pink and blue on the plan filed by themselves and marked Exhibit “A” in the Court below.

In their Statement of Claim, the plaintiffs admit that the defendant (who is an Uzebba man and consequently a “stranger” so far as the plaintiffs, who are Sabongidda people, are concerned) was allowed to farm cash crops and to erect a hut, in which he lived, on a portion of Sabongidda farming land. This portion is edged blue on Exhibit “A.” Sometime later the defen­dant began planting permanent crops without the permission of the plaintiffs and, as a result of being challenged as to his action, entered into an agree­ment, Exhibit “13,” to pay 15/- a year for his use of the land for permanent crops.

In spite of that agreement, proceedings were, in 1948, taken against the defendant by the 2nd plaintiff on behalf of the Sabongidda Native Author­ity, in Ora Native Court (Case No. 95/48). The Judgment of that Court is Exhibit “E.” Apparently that Court regarded these proceedings as being criminal in nature, because the defendant was “found guilty and discharged with a caution.” The so-called charges upon which the defendant was “found guilty” were (1) admitting one Okwika in the enclave farm land (2) to cease planting of permanent crops on Sabongidda farm land within reserved area. The Native Court also ordered that the defendant must “cease planting of permanent crops henceforth.”

The plaintiffs rely upon the Judgment and Order of the Ora Native Court to support their claim.

I agree with the learned trial Judge that these proceedings in the Ora Native Court were at least quasi-criminal in nature, although the so-called charges are somewhat foreign to the usual conception of criminal charges. That being my view, the judgment in that Suit cannot help the plaintiffs.

The plaintiffs aver further that, in disregard of the Native Court order, the defendant has not only continued to plant permanent crops on the land edged blue, but has also trespassed upon and planted permanent crops in the area edged pink on Exhibit “A.”

In 1933, a very large tract of land, including that edged green on Exhibit “B,” was by virtue of the powers conferred by the Forestry Ordinance (Cap.75 of the Laws of Nigeria) created a Forest Reserve. (See Order No. 22 of 1933) which is to be found at page 389 of the Laws of Nigeria, 1933).

By Order No. 3 of 1952, made under the same Ordinance, the boundaries of the Forest Reserve created by the 1933 Order were so altered as to exclude from the reserved area the land edged brown on Exhibit “A.” The plaintiffs aver that in fact the land edged brown thus became de-reserved. Power to de-reserve is contained in Section 21 of Cap. 75. 1 do not consider that the 1952 Order was a de-reservation under Section 21, but the effect of that Order was much the same, in that land previously part of a Forest Re­serve ceased, by virtue of the 1952 order, to have that character, and the status quo ante 1933 was thereby restored. That being my view, it is unnecessary to discuss the effect of the 1933 Order upon the title to the Sabongidda Farming Land. The Plaintiffs also aver that the Sabongidda Farming Land is the land of the plaintiffs, and was founded by the plaintiffs’ ancestors (see paragraph 10 of the Statement of Claim).

The plaintiffs finally aver that the defendant has not paid the yearly amount due from him under Exhibit “D.”


The defendant, by his Defence, denies substantially the whole of the averments in the Statement of Claim, and avers that he has been farming on the land in dispute for more than 30 years, including eleven years prior to the 1933 Order, without let or hindrance: that he has been planting economic trees and permanent crops without payment of any permit fee: that he never entered into Exhibit “D”: that he has never made any payment under it: that he succeeded in an appeal against the decision of the Ora Native Court in suit 95/48: and that the Sabongidda people were merely allowed by the defendant’s ancestors to farm on the land, those ancestors having, from time immemorial, also farmed there (see paragraph 8 of the Defence).


The learned trial Judge found, from the evidence, that the defendant had been on the land in dispute for 34 years then last past and that he had farmed permanent crops, principally cocoa, during all that period, and that he had never paid rent or tribute of any kind to anyone, nor had his rights ever been challenged until he and the 1st plaintiff quarrelled in 1947.


I am not prepared to say that any of these findings was wrong; there was evidence to support each of them and the learned trial Judge was entitled to come to those conclusions. The learned trial Judge made no specific finding on the issue raised by paragraph 10 of the Statement of Claim and paragraph 8 of the Defence, but it must, I think, be assumed that he accepted the plain­tiffs’ evidence on this issue and rejected that of the defendant, because he says, at the end of his Judgment “I consider it would be inequitable for the Court to make the declaration claimed.”


The learned trial Judge went closely into Exhibit “D” and held that it could not be regarded as a lease or agreement for a lease or tenancy. Even if that view be incorrect (which I do not think it is), the learned trial Judge went on to say this:­


“It is inconceivable that any reasonable person in the defendant’s posi­tion would agree to the terms and conditions contained in it, if Exhibit “D„ were explained to him. It was prepared by Amu, who initialled it as the wri­ter in the place of the Council Clerk, and I am not impressed by the mes­senger James Evborokhai (P. W.5) as a witness or as a suitable person to exp­lain the pseudo-legal jargon of Exhibit “D.” In all the circumstances I very much doubt that the thumb impression on Exhibit “D” is that of the defen­dant. The document was not produced or referred to in Ora Clan Court Case No. 95/48 (Exhibit “E”) and it provides no basis in the present case for the claim for £4.10.0. rent. Exhibit “D” is silent also with regard to the privileges conferred on and the specific amenities enjoyed by the indigenous natives but it is eloquent as to the past mistakes of the applicant for enrolment, his liability to punishment from the community etc. etc. and power of the com­munity to amend the “agreement” unilaterally. I do not think this so-called agreement would be enforceable in any Court, unless the community was the Judge in its own case. I find it difficult to resist the thought that this might have been so in the Ora Clan Court Case No. 95/48.”


I agree with these views expressed by the learned trial Judge and would add that if, at the time of Native Court Suit No. 95/48, Exhibit “D” was in existence and regarded by the 2nd plaintiff as valid, he would obviously have sued upon it in that suit.


Once the learned trial Judge had come to these conclusions (from which, as I say, I am not prepared to dissent), it is clear that the claim under heads (2), (3), (4) and (5) must fail.

There remains the claim for declaration of title, and here again the long possession by the defendant must be taken into account. Mere lengthy occu­pation of the plaintiffs’ land by the defendant is not, by itself, sufficient to disentitle the plaintiffs to a declaration of title. There must in addition be some act committed by the defendant adverse to the title of the plaintiffs. In the present case, for no less than 34 years the defendant had been planting permanent crops on the land in dispute, without interference from the plain­tiffs. That, to my mind, is a continuing series of acts adverse to the plaintiffs’ title, and, therefore, it would be most inequitable to say now that the plain­tiffs must be declared the owners of the land in dispute.


That disposes of all the heads of the claim, and I am of opinion that the dismissal of the claim by the Court below was right.


I would, therefore, dismiss this appeal and award to the defendant/ respondent costs fixed at £35.


JIBOWU, AG.F.C.J.: I concur.


DE LESTANG, F.J.: I concur.


Appeal Dismissed




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