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10TH JUNE, 1976.

SUIT NO. SC 123/1974

3PLLR/1976/16  (SC)



(1976) 6 S.C. 42







OGHALI AKPAGBUE AND ANOTHER . (For themselves and on behalf of the descendants of Onicha of Ike-Onicha Village in Aboh Division)


NDUOKU OGU AND OTHERS (For themselves and on behalf of the People of Umuchime Village Community in Ogume in Aboh Division)


NDUOKU OGU AND OTHERS (For themselves and on behalf of Umuchime Oka Community, Ogume, Aboh Division)


OBI OKOYE AND OTHERS (For themselves and on behalf of Ike-Onicha Village Community, Aboh Division)


Mr. H. A. Lardner (with him Messrs. O. I. Dafe & T. K. Dugbo) – for Appellants

Mr. Bayo Kehinde (with him Messrs. S. E. Aganbi & J. A. Obi) – for Respondents


Land Law – Consolidated Action – Declaration of title to land – Damages for trespass – Perpetual Injunction – Recovery of possession under Customary tenure – Traditional history of land – Evidence of acts of ownership – Forfeiture of Customary tenancy.


MADARIKAN, J.S.C. (Delivering the Judgment of the Court):

This appeal relates to two actions which were consolidated and tried together In the High Court, Ughelli.

The first action was suit No. UHC/8/71         in which the present appellants were the plaintiffs, and their claim against the defendants, now respondents reads:-

‘The plaintiffs seek the following orders from the court against the defendants jointly and severally:-

  1. Declaration of title to that piece or parcel of land known as and called OGBOJI, situate at Ike-Onicha bush in Kwale within the jurisdiction of this court, the area and position are as shown in a plan to be filed later. The value of the land is about £200.
  2. £100 damages for trespass committed by the defendants on the said land.
  3. Perpetual Injunction restraining the defendants their servants and agents from further entering on and committing acts of trespass on the said OBOJI land”.

The second action was suit No. UHC/15/71 where in the present respondents (as plaintiffs) for their part filed an action against the present appellants in Utagha Customary Court. The action was at the instance of one of the parties transferred to the High Court, Ughelli and, as stated earlier, numbered as suit No. UHC/15/71. The claim in the action was for:

“1.     Declaration of tide to that piece or parcel of land known as and called ‘OBOJI’ lying and situate at Umuchime-Oka within the jurisdiction of this Honourable Court, the area and features of which will be more particularly shown and delineated in a survey plan to be filed later by the plaintiffs in this court. The annual value of the land Is £100.

  1. £200 general damages for trespass in that the defendants, without the con-sent and authority of the plaintiffs, broke and entered Into portions of the said land for farming purposes between 1969 and 1971.
  2. Recovery of possession from the defendants of some portions of the said OBOJI land held under customary tenure, in that the defendants committed acts Inconsistent with and in defiance of the plaintiff’s tide to portions of the said land.
  3. PERPETUAL INJUNCTION restraining the defendants, their agents/servants or privies from entering or further entering any part of the said piece or parcel of land aforesaid without the plaintiffs’ prior consent and authority’.

In the course of the hearing of both actions in the High Court, the plaintiffs (now appellants) in suit No. UHC/8/71 were referred to as plaintiffs; and the plaintiffs (now respondents) in suit No. UHC/15/71 (who were the defendants in suit No. UHC/8/71 were referred to as defendants. By way of convenient shorthand, we propose to adopt the same nomenclature for the remainder of this judgment.

In view of the prolix nature of the pleadings, we do not propose to reproduce them in this judgement. It is sufficient for us, at this stage, to make cursory reference to the pleadings:-

Suit No. UHC/8/71

The amended statement of claim dated the 13th of October, 1972 runs into 26 paragraphs; and the amended statement of defence dated 20th of October, 1972 Is 16-paged and consists of 36 paragraphs.

Suit No. UHC/15171

The statement of claim dated the 4th of January, 1972 is divided into 27 paragraphs; and the amended statement of defence which was filed in reply was dated the 13th of October, 1972 and also runs into 36 paragraphs.

At the trial, the plan of the plaintiffs (No. TJ.M1161 of 25/8/71 and that of the defendants (No. MWC/1/71 of 25/8/71) were admitted in evidence by consent and marked as Exhibits A and B respectively. The 1st plaintiff (aged about 75 years) then gave copious evidence in support of the plaintiffs’ case. He testified that the plaintiffs who are natives of Ike-Onicha brought the action as representatives of the Ike-Onicha community. He described the location of the land in dispute (Oboji). He also described the natural features e.g. fishing dams and vegetation and mentioned the names of their boundarymen. He stated that their ancestor, Onicha, migrated from Benin with his brothers, Ikirike and Ngulu (or Nguru) and settled at Ike- Onicha. He gave evidence of acts of ownership exercised on the land by his ancestors. He also gave the names of some Jujus installed on the land by them. Regarding the location of the defendants, the 1st plaintiff said:

‘The people of Umuchime were far away and after the Atu, there is a bush be-fore one gets to Umuchime Village. The bush land is owned by Umuchime people.”

Atu Is an Important landmark which featured prominently in this case. It is a grassland which is always flooded and according to the plaintiffs, k Is the boundary between the plaintiffs and defendants, the plaintiffs’ land being north of Atu and the defendants’ land being south.

It appears from the evidence of this witness that when Onicha settled at Ike-Onicha, the people of Umuchime were at Umuchime-Obiaka which Is quite distant from Ike – Onicha. Over the years, the people of Umuchime have migrated to a place called Umuchime- Ovara which the plaintiffs conceded belonged to the defendants. According to the plaintiffs, the present dispute was sparked off when the defendants further migrated by crossing Atu and encroaching on the plaintiffs’ land north of Atu, and this resulted in the present litigation.

The 1st plaintiff was subjected to rigorous cross-examination.

Apart from the surveyor, the other witnesses for the plaintiffs gave evidence which, in the main, supported the plaintiffs case. The evidence related to traditional history and acts of ownership exercised over the land in dispute and fishing ponds thereon. The witnesses also referred to Jujus on the land and stated that the plain-tiffs owned and worshipped them. It was denied that the plaintiffs ever paid tribute to the defendants in respect of the land.

The defence led evidence to prove that the land in dispute is in Umuchime bush. According to the 2nd defendant, their ancestors (Chime Uku and Oka -Uku) were the first settlers ’on the land. They constructed a road from Ogbagu to Afor and were on one side of the road whilst one Ikilike settled on the other side of the road. Later, some people from Onicha Olona came to settle with Ikilike and as they in-creased in number, they requested the people of Umuchime to grant them land on which to farm. They were granted one side of Oboji land which was on the defendants side of the road subject to payment of tribute. It was when the plaintiffs stopped paying tribute that the chain of events which culminated in the two actions began. The defendants asked the plaintiffs to vacate the land. They refused to vacate and apart from acts of rampage, they also set the farms of the defendants on fire.

The defendants claimed ownership of the ponds and jujus on the land, the denied that Atu grassland is the boundary.

In a considered judgment, the learned trial judge reviewed the whole evidence and expressly stated that he was far more convinced by the traditional evidence given by the defendants than that of the plaintiffs. The learned trial judge eventually dismissed the plaintiffs’ claims and entered judgment for the defendants in the following terms:-

  1. Declaration of title to the piece or parcel of land known as and called “OBOJI lying and situate at Umuchime-Oka bush, which is verged ‘Pink’ In Survey Plan No. MWC/1/71 and marked Exhibit ’B’.
  2. Recovery of possession of the entire area of land verged ‘Blue’ in the said Survey Plan, Exhibit ‘B’ used by the defendants In this case.
  3. An Order of permanent injunction restraining the plaintiffs and their agents and servants from entering any part of the land coloured ‘Pink’ In the Survey Plan, Exhibit ‘B’, used by the defendants (being the plaintiffs in suit No. UHC/15/71) without the consent and authority of the defendants”.

The plaintiffs have appealed against the decision of the lower court.

In support of the 4th and 7th grounds of appeal, learned counsel for the appellants, Mr. H. A. Lardner, argued that the learned trial judge misdirected himself in law when he granted recovery of possession of the area edged blue on Exhibit ‘B’ to the defendants. It was his contention that the defendants’ pleading was deficient because “the material facts of Ukwani native law and custom on customary tenancy’ were not pleaded. He further submitted that the onus was on the defendants to establish that the sanctions prescribed by the customary law for the breaches alleged by them entitled them to the relief sought

Mr. Bayo Kehinde countered these arguments by making a broad proposition that it is an accepted Incident of customary tenure that a tenant who denies his overlords title renders his tenancy liable to forfeiture. Counsel relied on the observations of this court in N. Q. Dokubo AND ANOTHER . V. Chief D. Bob-Manuel AND OTHERS . (1967) 1 All N.LR. 113 where at page 121 it was stated that “a denial of the title of the true overlord is a ground for forfeiture in every system of jurisprudence known to us”.

The facts on which the defendants (who were plaintiffs in suit No. UHC/15/71) based their claim for recovery of possession in that suit appear to us to be clearly and adequately set out in paragraphs 25 and 27 (c) of the statement of claim which we now reproduce:-

  1. 11 Because of the growing population of the defendants’ people and the fad that some d their youths who now have money feel the time opportune to assert title over the area in dispute, the defendants have also since 1969 ceased to recognise the plaintiffs as their overlords in respect of the area granted to them by the plaintiffs and have done various other acts inconsistent with the terms of their customary tenure. The plaintiffs have in consequence commenced their action praying among other things for recovery of possession and perpetual Injunction in terms of the amended writ.
  2. The plaintiffs in view of the foregoing facts now claim as follows:-


(c) Recovery of possession of the whole area verged ‘Blue’ on the survey plan held under customary tenure In that the defendants committed acts Inconsistent with and in defiance of the plaintiffs’ title to the same.”

In considering the defendants claim for recovery of possession in suit No. UHC/15/71, the learned trial judge said:-

‘The claim for recovery of possession of the portion of the land verged ‘blue’ is founded on the evidence that that area of land was granted to the plaintiffs on payment of customary tributes in form of yams, palmwine and goats annually.


The plaintiffs, having violated the conditions under which they were granted that portion of the land under native law and custom cannot continue to be In pos-session of the land. The defendants are entitled to be restored to possession.”

There can be no question that the basis of the plaintiffs’ claim in suit No. UHC/8/71 tantamounts to a denial or challenge of their overlord’s title. The ingenious arguments of Mr. Lardner would have been relevant if he had succeeded in persuading us that the claim was for forfeiture of customary tenancy on the ground of specific breaches. In such case, the court would have to consider the nature of the breaches, the sanctions prescribed for such breaches under the relevant customary law, and whether to grant forfeiture or relief against forfeiture.

In our view, the general principles of law applicable to the accepted facts of this case are well settled. Denial of an overlord’s title is one of the gravest breaches that a customary tenant could commit; and we are satisfied that, on the facts of this case, the learned trial judge was entitled to make an order for recovery of pos-session of the area edged blue on Exhibit ‘B’

Mr. Lardner next argued the 6th ground of appeal which reads as follows: ‘The award of an injunction against the plaintiffs in respect of the area edged pink in Exhibit B is wrong in law.


(a) the claim for trespass as to the portion edged green was dismissed.

(b) the area edged blue therein was not at any material time In the possession of the defendants.”

The relevant portion of the claims in suit No. UHC/15/71 Is as follows:-

(1) £200 general damages for trespass on the area verged green in Exhibit B. (ii) Perpetual injunction in respect of the area edged pink.

The learned trial judge declined to allow the claim for trespass In respect of the area verged green in Exhibit ‘B’. He was therefore clearly In error to grant an order for Injunction in respect of the area verged pink as that area Includes the area verged green. Indeed, the area verged pink consists of the area verged green and the area verged blue. In so far as the order for injunction relates to the area edged green; we think that Mr. Lardner was on firm ground when he contended that the order ought not to have been granted. As the defendants in their capacity as landlords have been granted recovery of possession, it seems to us inequitable at the same time, to grant an injunction. The order for Injunction will therefore be discharged.

Mr. Lardner then argued the 1st and 5th grounds of appeal together. It was his submission that in making determination of primary facts, the learned trial judge did not advert his mind to the evidence. He pointed out that in suit No. UHC/15/71, the claim of the defendants was that the plaintiffs were their customary tenants in the area edged blue on Exhlbit ’B’ He then went through the evidence to show the attempts made by the defendants to prove the tenancy and invited this court to hold that the existence of a customary tenancy was an adroit way of explaining away the fact that the plaintiffs were in possession of the land. Counsel also argued that the location of Mene juju near the old settlement tended to support the plaintiff’s case. With regard to ownership of fishing ponds, counsel submitted that the ponds were not shown on the defendants’ plan Exhibit ’B’- and argued that if the defend-ants infect owned fishing ponds and wanted to base their case on the ownership of such ponds, the locations of the ponds would have appeared on Exhibit ‘B’ Similarly, counsel criticized the defendants for failing to call boundary men as wit-nesses under the pretence that all Ikilike people were dead. Counsel argued that the traditional evidence adduced by the defendants was Inconsistent with present user of the land. Counsel then referred to the case of Agedegudu v. Nenlfuja (1963) 1 All N.L.R. 109 where the proper test for evaluation of traditional evidence was laid down at page 115, and submitted that if the test had been applied, the court would have concluded that the traditional history of the plaintiffs was more probable than that of the defendants.

Mr. Lardner concluded his arguments by submitting that:

(i) With regard to suit No. UHC/15/71, the claims should be dismissed as, quite apart from other points already urged on the court, the defendants (who were the plaintiffs in that case) have not proved the boundaries of the land In dispute; and

(ii) the plaintiffs’ case remains substantially unchallenged.

In reply, Mr. Kehinde referred us to a portion of the judgment where the learned trial judge took Into account the discrepancies in the evidence before making findings of facts and counsel contended that nothing has been urged on the court to disparage those findings.

We have carefully considered the complaints of Mr. Lardner with respect to the findings of facts and we find k difficult to see the strength of Mr. Lardner’s arguments. In the course of the judgment, the learned trial judge extensively reviewed the evidence and rightly in our view, based his findings on the plethora of evidence adduced at the trial. We are satisfied that the judge was entitled to draw the inferences which he drew on the evidence. It cannot be said too often that it is not the function of this Court to substitute its views for those of the trial judge where, as in the Instant case, he has made findings of fact after a dispassionate, proper and fair appraisal of the evidence given in support of each party’s case. The learned trial judge was not unmindful of the discrepancies in the defendants/respondents’ case and he resolved them in a manner which was unexceptionable when he said:-

“Counsel for the plaintiffs have drawn my attention to some of the discrepancies in the defendants’ case especially with regard to the site of Mene juju and the areas in which the defendants were said to have carried out their farming activities before this incident. I have considered these discrepancies and I have also taken into consideration certain omissions in the defendants’ case. In spite of these discrepancies and omissions, I am far more convinced by the traditional evidence given by the defendants than that of the plaintiffs.”

We are therefore unable to accede to the 1st and 5th grounds of appeal.

The complaints in the 3rd and 4th grounds of appeal appear to us to lack sub-stance as the boundaries of the land in dispute are clearly depleted on the plans tendered by consent – Exhibits ‘A’ and ‘B’. On the face of these exhibits, ft is difficult to see how the plaintiffs can maintain their contention that the boundaries of the land in dispute were not proved.

In the result, all the grounds of appeal (except ground 6) having failed, this appeal will be dismissed save that, for the reasons already given in the course of this judgment, the order of the lower court granting ‘permanent’ injunction against the present plaintiffs/appellants in respect of the area edged pink on Exhibit ‘B’ is here-by set aside.

In view of the final order made in this appeal, there will be no order as to costs in this court but costs in the lower court will remain as ordered by that court. Appeal dismissed.


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