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19TH APRIL, 1974

SUIT NO. SC 125/1973

3PLR/1974/39  (SC)



(1974) 4 SC. 153


BEFORE THEIR LORDSHIPS                              







(for themselves and on behalf of the people of lyamo)




(for themselves and on behalf of the people of Ogbiddo)


(case against it withdrawn and struck out)


Mr. G.O.K. Ajayi (with him Messrs C. I. Akere and A. Omoghai) for the Appellants.

Mr. S. A. Oloko (with him Mr. J. O. Sadoh) for the Respondents.


Land Law Claim for declaration of title Damages for trespass Perpetual injunction.

Practice and Procedure Duty of appellate court to disturb findings of fact of trial Judge where findings not supported by weight of evidence.


COKER, J.S.C. (Delivering the Judgment of the Court): The respondents to this appeal, as plaintiffs in the High Court, Auchi, Mid-Western State, had sued the appellants, as defendants, for:

“1.     A declaration of title to a piece of land known as OWEMI land in Uzairue Clan, Estako Division within Ubiaja Judicial Division and will be more properly defined in a plan to be filed thereafter.


  1. The sum of ₤200 being general damages for trespass (committed by the defendants between 1964 and 1968 upon the said land).


  1. Perpetual injunction restraining the defendants and their agents or servants from further trespass on the said piece of land.”


The parties duly filed their pleadings and hearing in the case commenced on the 20th January, 1971 and ended with the addresses of counsel on the 30th March, 1971 on which date the learned trial judge reserved judgment in the case indefinitely. Judgment was eventually delivered on the 13th April, 1972 on which date and before delivering his judgment the learned trial judge, obviously aware himself of the inordinate delay in giving judgment, made some observations evidently excusing the delay. By that judgment, he gave in favour of the plaintiffs against the defendants with costs and concluded his judgment thus:


“In view of the foregoing, the judgment of this Court is as follows:


(i)      that the plaintiffs are hereby granted a declaration of title to the land delineated and described in Exh. “Was lyamo land and that their title of course, extends to and covers the spots edged “Pink” i.e. the burrow pits marked in the Survey Plan i.e. In Exh. “A” as points A, B, C, D and E respectively.


(ii)     that the claim as to trespass against the defendants is not proved and is therefore refused and furthermore, the special relief sought as regards perpetual injunction is accordingly refused.


The crux of this case being an action for declaration of title as to land comprised in Exh. ‘A” and since the plaintiffs have been adjudged owners of the said land, they are entitled to cost of these proceedings.”


The defendants have now appealed to this Court against that judgment on the grounds, firstly, that the learned vial Judge had given judgment against them for declaration of title to an area which the plaintiffs never claimed and, secondly, that in view of the long lapse of time between the conclusion of the hearing and the delivery of judgment, the learned trial Judge had lost his impressions of the witnesses and the tenor of their evidence and, as such, his judgment is not supported by the weight of evidence.


There were originally two defendants to the action, the present respondents and a Company described as Dumez (Nigeria) Ltd. As stated before, the parties filed their respective pleadings. By their amended statement of claim, the plaintiffs aver that they are lyamo farmers of lyamo village in the Uzairue Clan in Etsako Division of the Mid-Western State of Nigeria and that the defendants are also farmers of Ogbido village in the Uzairue Clan, whose ancestors had, some one hundred years ago, settled in that village, which has always been a part of lyamo land, with the permission of the progenitors of the plaintiff and on condition, inter alia, that they should not under any circumstances alienate any part or portion of lyamo land. Paragraphs 7,8,10,117 and 21 of the plaintiffs’ statement of claim read as follows:


“7.     The parcel or piece of land in dispute is the area marked pink in the plan filed with original statement of which land forms part of the lyamo land otherwise called OWEMI and marked yellow in the said plan.


  1. The people of lyamo have common boundary with Ukpilla people to the North, Elele and Afowa people to the South and South-East and lyore Ayoshene to the East and also Ijukwu and Avis people to the West.



  1. That the area in dispute is a portion of lyamo land situate and lying to the East of Jattu/Ukpilla Road.


  1. The plaintiffs’ ancestors also restricted the defendants’ ancestors not to lot or sublet any of the said parcel of land to strangers.


  1. That the defendants between 1964 and 1968 caused a breach of the customary covenant by permitting DUMEZ (Nigeria) Ltd. to enter the said Owemi or lyamo land and excavate and take away laterite to the detriment of the plaintiffs and by collecting from DUMEZ (Nigeria) Limited, compensation of ₤200 for the said land without the consent or authority of the plaintiffs.”


The plaintiffs’ statement of claim also avers that between 1964 and 1968 a Company, Dumez (Nigeria) Ltd., dug burrow pits “on the said land” and that the defendants claimed monetary compensation from the Company for those acts of “waste and alienation”. Both the present respondents and the Company, Dumez (Nigeria) Ltd., filed statements of defence. In its own statement of defence, the Company stated that it duly paid monetary compensation to representatives of both the plaintiffs and the defendants, although, as it averred in paragraph 3 of its statement of defence:


“3.     As regard paragraph 3 of the amended statement of claim, the 2rd defendant says it entered and excavated and removed earth from the said parcel of land but did not exceed the authorised limit of the JattuUkpilla Road area and the said earth was excavated and taken for the construction and/or maintenance of the Jattu Ukpilla Road on behalf of, and with the permission and approval of the authorities responsible for the reconstruction and/or maintenance of the said Road, namely the Mid-Westem Nigeria State Ministry of Works, Lands and Transport now Ministry of Works and Housing.”


The statement of defence of the present respondents denied the substantive averments in the plaintiffs’ statement of claim and states that “lyamo village is one of the nineteen villages that constitute Uzairue Clan” and that one Lido, the original founder of Ogbido Village, was one of the first set of settlers who migrated to Uzairue and founded some of the several villages that now constitute the Uzairue Clan. These defendants aver further, by their statement of defence, that all Owemi land is communal property of all the members of the Uzairue Clan and paragraph 7 of the their statement of defence reads thus:


‘The 1st and 2nd defendants with reference to paragraph 7 of the amended statement of claim admit that the area verged “PINK’ is the piece or parcel of land in dispute but emphatically repudiates the claim of the plaintiffs that k forms part of lyamo land. The 1st and 2nd defendants agree that the said land in dispute constitutes part of a larger piece of land known and generally referred to as OWEMI land”


The statement of defence of these defendants further states that lyamo land is not synonymous with Owemi land, although the former is a part of the latter, and denies that the defendants were ever the customary tenants of the plaintiffs’ people. Paragraph 19 of their statement of defence avers as follows:


“I9     With regard to paragraph 24 of the amended statement of claim the 1st and 2nd defendants admit that there are burrowed pits on Owemi land but maintain that these burrowed pits belong to the whole of Uzairue Clan. The 1st and 2nd defendants will maintain that they were aware that Dumez (Nigeria) Limited dug some burrowed pits on Owemi land but deny the assertion that they ever got ₤200 (two hundred pounds) from Dumez (Nigeria) Limited as compensation to be paid by the Dumez (Nigeria) Limited for the burrowed pits on Owemi land will belong to the whole of Uzairue Community and will be disbursed by them in the manner seemed fit.”


For reasons which do not appear from the records, the Company, Dumez (Nigeria) Limited, settled this case with the plaintiffs out of court before the commencement of hearing and terms of settlement were filed to the effect, inter alia, that the Company “will pay to the plaintiffs the sum of ₤50 (fifty pounds) only in full and final satisfaction of the claim against” the company. the learned trial Judge was asked by the parties to make the terms of settlement an order of court and he did so and accordingly asked that the case against the Company be struck out with no orders as to costs.


The case between the present parties before us then proceeded to trial and the parties gave evidence calling witnesses in support of the averments in their pleadings. The first plaintiff in the course of his testimony testified thus:


‘The land in respect of which I have been speaking in Court is popularly but erroneously called “Ogbiddo” land and that is the land in respect of which we have sued the two defendants to Court for and on behalf of Ogbiddo people.


………. This action is instituted by me and 2nd plaintiff on behalf of lyamo people in a representative capacity. I want this court to take the land back from Ogbiddo people for me and to give me any amount the court considers good enough to compensate me for the sufferings and troubles that I have been enduring in the past three years at Ubiaja High Court and here by the actions of Ogbiddo people ………………………………………………….. Each of the 19 villages constituting Uzairue Clan owns its own land separately. I do not agree that all the land forming part of Uzairue Clan is called Owemi land; I have never heard of land in Uzairue called “Owemi” land.”


A surveyor, by name Obadiah Omoregie, was called by the plaintiffs and he produced the plan which he was commissioned by the plaintiffs to prepare. The plan was admitted in evidence as Exhibit A and the surveyor testified that he indicated on the plan Exhibit A going northwards along the tarred road, “small squares marked A,B,C,D and E” and that these are the burrow pits which he was told were “the cause of the dispute between rival claimants”.


As we observed before, the defendants also gave evidence, the first defendant, Chief Okere Imonikhe, stated as follows;


‘The land where Ogbiddo people now live belongs to the Ogieneni of Uzairue; the land of Ogbiddo belongs to Uzairue; the land on which we the Ogbiddo people now live does not belong to us the Ogbiddo people. The land on which lyamo people live belongs to the Ogieneni. There is no village of the 19 villages that owns land in Uzairue Clan to the exclusion of other villages; all the land in the Clan belongs to the Ogieneni….. This company dug these holes between lyamo and Ikholo and else between Ikholo and Ogbiddo, Ikholo village is in fact part of Ogbiddo village. The land on which this Company dug holes or pits belongs to Uzairue; the Company dug in all about nine (9) burrow pits.”


With respect to the payment and acceptance of monetary compensation from the Company, Dumez (Nigeria) Ltd. the 1st defendant testified thus:


“There was a hole dug between Ikholo and lyamo. The Company paid some money for the burrow pits that they dug; Dumez Coy’s representative met the Ogieneni and discussed with him. At a meeting of the Council of Chiefs of 19 villages of Uzairue I was delegated by the Ogieneni to go and collect money from Dumez Co. for two of the pits, they dug and I went and collected ₤46.


A quarrel broke out over the matter of the payment between lyamo and Ogbiddo and so no further compensation could be demanded from the Company in respect of the remaining 7 pits.


The Village Head of Elele and I were both sent to collect the money from the Company. I sent the ₤46 to the Ogieneni of Jattu. lyamo people had earlier collected ₤25 from Dumez Co. as compensation for one burrow pit.”


On the day that judgment in the case was to be delivered, the learned trial Judge, evidently in fairness to the parties and possibly in realisation of the possible effects of the long delay in reading the judgment, addressed the parties thus:


‘This is a long standing matter which had been adjourned ‘sine die” for judgment. Of course, for a number of reasons, it was impossible to give judgment before now and included among those reasons is that I was away on United Kingdom leave for some months. On my return, I was virtually living in Saba and attending Court in Auchi. I proceeded with dealing with the matters which come before me as both criminal and civil cases were on the cause list from day to day and I had to watt until such a time as I was provided with accommodation with fairly satisfactory conditions in Auchi before I could settle down to write judgment in this matter. In recent times, the work in the court has been quite heavy and many matters have been disposed of while judgment in those matters had to be written under conditions which cannot be said to be comfortable or satisfactory. Along with such work, this Court has undertaken in recent times the preparation of this judgment and coupled with the fact that I have been indisposed and that the judgment was reserved about a year ago, the process of writing the judgment has been like one of hearing the case afresh as I have to read and reread the record of proceedings in order to recapitulate the facts of the matter, but for a considerable measure of determination on my part, the judgment would not be ready even now.”


The learned trial Judge thereafter read his judgment in which, after paraphrasing step by step the evidence given by the several witnesses in that order and summarising the addresses of learned counsel, he observed concerning the story of the plaintiffs as follows:


The traditional history that the 1st plaintiff gave as to how lyamo village was founded was simple and straightforward; the landmarks he referred to as forming the boundary between lyamo land of Uzairue Clan and Iddo village of Okpella Clan were corroborated by his witnesses and were discernible in the survey map tendered Exhibit “A”.


I believe the plaintiff and his witnesses that their ancestors were the first to settle on the wide expense of land covered by and described as lyamo and in Exhibit “A” when it was virgin bush and an unoccupied territory and that they thus became owners of same and that their ancestors lived, farmed and hunted therein and have with and through their offsprings been in possession of the said land ever since then till now.”


With respect to the defendants, he commented as follows:


“The list defendant and his witnesses gave very poor impression of themselves as they testified before me during the proceedings; they showed lack of confidence in what they testified to and with particular reference to the 1st defendant himself, they left me in no doubt that they were not witnesses of truth and that they were persons who could not be believed on their oaths.. ………. I therefore do not believe the evidence of the 1st defendant and his witnesses that the spot where they (Ogbiddo people) now occupy and live in on the Jattu/Okpela tarred road has always been their place of origin and abode and their original settlement from time immemorial. I also believe the evidence of the defendants that they are natives of Uzairue because 1st defendant and his witnesses are unreliable witnesses.”


The learned trial Judge then proceeded to pass some severe strictures on the defendants, their witnesses and their case and rejected all. He then observed:


“In view of the foregoing, I am satisfied that the plaintiffs have proved their case sufficiently as to entitle them to a declaration of title to the land delineated and described in survey plan Exh. “A” and referred to as lyamo land. I will observe that there is no evidence that this same land is also known as or called Owemi land; but the available evidence shows that it is called lyamo land and I believe and accept this as proved. I am also satisfied that the area for which declaration is sought is sufficiently clearly demarcated in the said Exh. “A” and that it is known to both parties and is clearly identifiable in its present state.”


The defendants have appealed to this Court against that judgment and before us it was argued that the learned trial Judge had granted a declaration of title to the plaintiffs for the entire area of land edged yellow on the east in the plan Exhibit A but not edged at all on that plan on the western boundaries and that in any case the plaintiffs claimed a declaration of title in respect of only a piece of land edged pink on their plan according to paragraph 7 of their amended statement of claim which was replied by paragraph 7 of the amended statement of defence of the defendants. We had earlier on in this judgment set out paragraph 7 of the amended statement of claim. Shown along the new Jattu/Okpiila Road on the west of the area shown in Exhibit A are some five pink areas (i.e. areas marked out in pink) and this was also the evidence of the plaintiffs’ surveyor, Mr. Omoregie, in the course of his testimony before the court. None of the pink areas was delineated with survey pillars or boundary beacons and it is obvious that no one except those who prepared the plan Exhibit A could identify them or any of them on the surface of the earth. In view of the fact that by paragraph 7 of their statement of claim the plaintiffs only claimed a declaration of title in respect of ‘the piece or parcel of land …….. marked pink in the plan filed” we asked learned counsel for the plaintiffs, in the course of his argument, to show and identity to us the particular pink area to which the plaintiffs’ claim relates. He was unable to do this and frankly admitted his inability to do so and he then asked us either to send the case back for retrial or to enter a nonsuit for the plaintiffs. Clearly, the learned trial judge had given judgment for a declaration of title to land completely different to what the plaintiffs claim in their action and the defendants, who always assert that the large expanse of land belongs to the Uzairue Clan of which they form a part, are justifiably aggrieved.


In the same way, it was argued by learned counsel for the defendants that owing to the long delay in preparing his judgment, the learned trial Judge had lost his impressions of the case and the evidence given thereat. Learned counsel for the plaintiffs disputed this and countered the argument by some attempts at justifying the findings of the learned trial judge. We are, however, firmly of the view that the submissions of learned counsel for the defendants are well founded.


It is not the duty of a Court of Appeal to disturb findings of fact of a trial Judge, especially in a civil action, unless these findings are not supported by the weight of evidence or the trial court or tribunal has not made proper use of its opportunities to appraise the evidence given before it. Undoubtedly, this is an occasion for applying this principle to its full extent. The learned trial Judge in his judgment disbelieved the story of the defendants that they were part of the Uzairue Clan, but in fact that was the case of both parties. In the course of his evidence, the 1st plaintiff, Chief Yakubu Iseghore Kakarah, named Ogbido (i.e. the defendants’ village) as one of the nineteen villages that make up the Uzairue Clan. The evidence in the case establishes beyond doubt that the several villages arrived at their several placed of abode at different times and perhaps from different places and it is highly improbable that any of them in these circumstances would agree to be subservient to the other as the plaintiffs herein have claimed. Again, the plan Exhibit A, on a closer examination of it, belies the story of the plaintiffs even though it was prepared and produced in evidence by them. Here and there along the main road in the west, from north to south, are shown several villages admittedly members of the Uzairue Clan. The 1st plaintiff spoke of this conglomeration as follows in his evidence:


‘Travelling from Jattu towards Okpilla, one comes to the following villages in this order, Elele about 2 miles, lyamo about 2 miles further, Ikhoro about a pole off; Ogbido about 1 mile further away; Ayoghona about one pole further off; Uruoke about one pole again further off; then you get into the area of jurisdiction of Okpilla Clan.”


That witness gave no evidence whatsoever explaining away the occurrence of these villages in such juxtaposition to each other, and the area in respect of which the learned trial Judge gave the plaintiffs a declaration of title obviously covers the lands of these villages which are not parties to the present action and which, by the pleadings of the parties, could not have anticipated a declaration of title to an area of such immensity.


Nor is this all. The learned trial Judge rejected the claim for damages for trespass on the ground that there was no evidence of trespass by the defendants and found, concerning the defendants:


(iv)    that Ogbiddo people lived for many years around the stones and caves called “Uddo” given to them to live in by the lyamo people and that from there, they moved to the present spot which they now occupy on the Jattu/Okpilla tarred main road in keeping with the coming of civilisation and progress at local level;


(v)     that the spot where they now occupy which is shown in Exh. :A” is also part of lyamo land and that lyamo have never objected to Ogbiddo people living and/or farming on any part of their land i.e. as regard the place lyamo people gave to Ogbiddo people to live in originally and the new spot they moved into as a result of civilisation and social development.”


This finding postulates that apart from their village the defendants occupied other portions of what is described by the plaintiffs as lyamo land in the plan Exhibit A. Although the learned trial Judge decided to prefer and accept the evidence of the plaintiffs that they were the original owners of the entire land, yet a clear and dispassionate examination of the entire case must in our view show that the story of the defendants as to the communal holding of the entire land is the more probable one in the circumstances of the case. The land described as lyamo land in Exhibit A contains a large number of the several villages constituting the Uzairue Clan and this even on the plaintiffs own showing. The parties to the case did not join issues on these areas at all and we cannot understand how the other villages should be treated as having acquiesced in the battle of title to their entire lands.


If we agree with the explanation with which the learned trial Judge prefaced his judgment and then read that explanation in the light of the foregoing comments and submissions of learned counsel for the defendants to which learned counsel for the plaintiff had no complete answer, we are driven to the inescapable conclusion that the learned trial Judge, by the time he was able to prepare his judgment, had lost all the impressions which the opportunities of a court of trial could afford him. We are in no difficulty about this and conclude that both grounds of complaint against the judgment are justified.


We are at pains to consider the type of order to make in the circumstances of this case. The learned trial Judge himself had rejected the claims of the plaintiffs for damages for trespass and injunction. He took the view that the plaintiffs had given no satisfactory evidence in support of those claims with respect to the large expanse of land which he always, though erroneously, had in mind. The act of trespass complained of was based on the digging of pits by the Company, Dumez (Nigeria) Limited, and the payment and acceptance of monetary compensation from that Company. The Company denied paying a kobo to the defendants and the plaintiffs evidently confronted with this settled their case with the Company out of court. That was the only complaint of the plaintiffs before the court and that is all there was to it. The court has a discretion in granting a declaration of title and the substance of the complaint in this case having been compromised in such a way by the plaintiffs, the learned trial Judge had a duty to reconsider the propriety of granting claim for declaration of title. It does not appear from the records that he did this. But, apart from the errors of the learned trial Judge, the plaintiffs’ case is such that in the circumstances they could not have obtained a decree of declaration of title to any of the pink area even if any one of them is identified with paragraph 7 of their statement of claim. None of these areas has any boundary pillars to demarcate it. Besides, at the trial, the plaintiffs gave no evidence to identify in particular the real subject matter of their action as postulated by paragraph 7 of their amended statement of claim. In such a case, neither an order of nonsuit nor one sending back the case for a retrial can be just. The plaintiffs have simply failed to prove the case which they had brought to court. We have decided that the appropriate order to make Is one dismissing the plaintiffs’ case.


The appeal therefore succeeds and it is allowed. The judgment of the High Court, Auchi, Mid-Western State, in Suit No. U/3/68, including the order for costs, is set aside and we order that the plaintiffs’ case should be dismissed. This shall be the judgment of the Court. We also order that the plaintiffs/ respondents shall pay the costs of the defendants/appellants fixed in this Court at N136 and in the court below at N105.


Appeal allowed.


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