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25TH APRIL, 1958.


3PLR/1958/31 (FSC)



M.C. NAGEON DE LESTANG, Ag. F.C.J.  (Presided and Read the Judgment of the Court)





CHIEF N. KPOROARO (For himself and the people of Ejovbe)


  3. DAMA

(For themselves and on behalf of Owhrode people)



(For themselves and as representing the people of Iwreka)


  2. CHIEF OTARERI (For themselves and as representing the people of Owhrode)




PRACTICE AND PROCEDURE – DOCUMENT – Non-certification and improper certification of document as required by law – Effect on its admissibility.

PRACTICE AND PROCEDURE – EVIDENCE – Admissibility – Admission of inadmissible evidence -S.225(1) Evidence Act Cap. 63 – When invoked.

PRACTICE AND PROCEDURE – EVIDENCE – Admissibility in consolidated suits – Evidence tendered in one suit – Whether ipso facto constitutes evidence in another suit.

PRACTICE AND PROCEDURE – EVIDENCE – Admission of inadmissible evidence – Lack of objection thereto – Effect.

PRACTICE AND PROCEDURE – EVIDENCE -Admissibility – Paragraph of pleading struck off for vagueness – Inadmissibility of evidence for proof of averments therein-When such evidence admissible.

PRACTICE AND PROCEDURE – EVIDENCE – Admissibility – Lease document not stating title of parties thereto – Leading of oral evidence to ascertain same – Admissibility of – Section 132 Evidence Act.

PRACTICE AND PROCEDURE – EVIDENCE – Documentary evidence – Certification of document required by law to be certified- Lack of proper certification- Document inadmis­sible.

PRACTICE AND PROCEDURE – EVIDENCE – Estoppel – Previous judgment not pleaded by way of -Effect thereof – S.54(1) Evidence Act Cap. 63.

PRACTICE AND PROCEDURE – Consolidation – Of suits – Subsequent differentiation between them – Impropriety.

PRACTICE AND PROCEDURE – Pleadings – Paragraph thereof struck off for vagueness – Evidence subsequently led to prove averments therein – Inadmissible.



S.N. Bernstein -for the Appellants.

  1. A. Fani-Kayode (with C. Idigbe) -for the Respondents.



DE LESTANG, Ag. F.C.J. (Delivering the Judgment of the Court):

This is a joint appeal by the people of Ejovbe and Iwreka against the decision of the High Court of the Western Region of Nigeria, sitting at Warri, in con­solidated suits Nos.W/92/1955 and W/96/1956. In suit No.92/1955, the people of Owhrode sued the people of Ejovbe claiming:

(a)     a declaration of title to a piece of land edged pink on their plan, Exhibit “1,”

(b)     damages for trespass on parts of that land, and

(c)     an injunction.

The land in respect of which the people of Owhrode sought a declara­tion of title was, and had been, for a very long time occupied by the peoples of Ejovbe and Iwreka, who are closely related. The people of Ejovbe occupy little more than half of the northern portion of the land, while the southern portion is occupied by the Iwreka. It is therefore not surprising that the latter applied to be joined as defendants in the action. Their application was, how­ever, refused the Court suggesting that they should bring a separate action. This they did by suit No. 96/1956 against the people of Owhrode in which they claim a declaration of title to the southern portion of the land occupied by them and an injunction. In due course this action was consolidated with suit No. 92/1955. Much of the difficulties, as will be seen later, which have arisen in this appeal is due to the consolidation which in the circumstances of this case should not have been made and none would have occurred if the learned trial Judge had granted the Iwreka’s application to be joined as de­fendants. The position in the result was that there was one set of pleadings in suit No.92/1955 between the Owhrodes and Ejovbes and another set, by no means identical, in suit No. 96/1956 between the Iwrekas and the Owhrodes. The situation was not improved by the fact that the defendants in suit No. 92 and the plaintiffs in suit No. 96 were represented by the same Counsel.


The Owhrodes in suit No.92 pleaded certain unspecified judgments in paragraph 5 of their Statement of Claim. In suit No. 96 they also relied on some judgments in paragraphs 3, 7 and 8 of their defence which, no doubt, included those referred to in the other suit. At the commencement of the hearing the learned trial Judge struck out paragraph 5 of the Statement of Claim in suit No. 92, on the ground of vagueness, but granted leave to the same party to amend paragraphs 3, 7 and 8 of its defence in suit No. 96 by giv­ing full particulars of the cases therein relied upon. I think that the learned trial Judge erred in differentiating between the two suits, especially as he had consolidated them. This also has been the subject of complaint because the learned trial Judge used the judgments referred to in the amended parag­raphs 3, 7 and 8 of the defence in suit No. 96 as evidence generally in the cases against both the Iwrekas and the Ejovbes.

Now the main issue between the parties was one of title. While the Ow­hrodes claim ownership of the whole land, the Ejovbes and Iwrekas between them also claim ownership of the same land. Shortly put the Owhrodes case was that the land belonged to them from time immemorial and that about a century ago one of their ancestors allowed the Ejovbes and the Iwrekas to settle on portions of it on payment of tribute in accordance with Native Law and Custom. The Ejovbes and the Iwrekas denied being placed upon the land by the Owhrodes or ever paying any tribute to them and contended that they were the original settlers on the land which was virgin forest when they first occupied it. The learned trial Judge was not impressed by the evidence of traditional history led by the parties and in my view he rightly found that evidence unreliable. He thought, however, that the Ejovbes and the Iw­rekas had been continuously in occupation of their villages on the land for at least a century. This was indeed admitted by the Owhrodes and no exception can be taken to this finding. In order to decide the question of title he, how­ever, relied almost entirely on: (1) the previous proceedings in the Native Courts which were produced, namely, Exhibits “4,” “5,” “6” and “14,” and (2) a deed of lease in respect of a small portion of the land, Exhibit “10” and concluded:­

“In view of the previous proceedings between the Owhrode and Ejovbe peoples and the statements of Chief Ogegde of Ejovbe in those proceedings, and also having regard to the deed of lease exhibit 10, I have come to the conclusion that the land in question is and has always been the property of the Owhrode people, but that the Ejovbe people have been in occupation of part of it as customary tenants for several generations.

I accept the evidence of the plaintiffs, that, like their Ejovbe Kinsmen, the lwreka people were originally allowed to settle on the land they now claim by an ancestor of the plaintiffs.”


He accordingly gave judgment for the Owhrodes granting them the declara­tion they sought in suit No. 92. He, however, dismissed their claim for dam­ages for trespass and for an injunction as well as the claim of the Iwrekas in suit No. 96.


This appeal really concerns the declaration of title granted to the Ow­hrodes.


The first ground of appeal argued was ground 4 which reads:­

“That the learned Trial Judge was wrong in law in awarding de­claration of title by relying solely on some Native Court Judg­ments which Judgments the Learned Trial Judge had struck off at the hearing of the case as they were badly pleaded in paragraph 5 of the Plaintiffs’ Statement of Claim in Suit No. W/92/55.”


This ground is not very accurate since, as has already been indicated, the learned trial Judge did not rely solely upon the Native Court judgments. He also took into account the deed of lease, Exhibit “10,” and other matters of lesser importance such as an alleged change of front by the defence in the course of the trial and the absence of a boundary between the Ejovbes and the Iwrekas. Be that as it may, the appellants’ contention is that as parag­raph 5 of the Statement of Claim in suit No.92 was struck out, the Native Court cases should not have been admitted in evidence and in any event were not admissible against the Ejovbes. I quite agree that generally speak­ing where a paragraph of a Statement of Claim is struck out no evidence may be given of the averments therein contained. Commonsense dictates that it should be so. Such evidence may, however, be given by consent or may be covered by some other part of the pleading. In the present case since the Na­tive Court suits were not pleaded as an estoppel it was not strictly necessary to plead them. They were purely matters of evidence and extremely relevant on the issue of title (section 54(1) Evidence Ordinance Cap. 63). Besides, one of the cases, namely, Exhibit “4,” was put in by consent and none of them was objected to on the ground of irrelevancy by reason of the striking out of paragraph 5 of the Statement of Claim. That stand was taken for the first time in the addresses at the conclusion of the trial and it is interesting to consider the learned trial Judge’s reaction. He dealt with this matter in his judgment and said:­


“Mr. Egbe for the defendants argued that the previous pro­ceedings were not admissible in evidence for the case against the Ejovbe people since paragraph 5 of the statement of claim in that case had been struck out.


I do not agree with this point of view, and hold that when two suits are consolidated all admissible evidence at the hearing must be taken into account in arriving at a decision of all the case. The main reason for consolidation is to determine several claims which are closely connected and which can be reasonably taken together at one trial. Facts which otherwise would be relevant or admissible in one suit if taken separately, cannot, if established, be disregarded in a consolidated hearing with regards to the other suits, if they have a bearing on those suits.

The evidence at the trial is available for all purposes and can­not be restricted to part of the case only.”


This passage, in my view, explains the apparently inconsistent attitude of the learned trial Judge in, on the one hand, striking out paragraph 5 and on the other allowing amendments to be made to paragraphs 3, 7 and S of the defence. It suggests, in my view, that he never intended to shut out the Na­tive cases altogether as far as suit No. 92 was concerned, but thought, albeit erroneously, that evidence tendered in one suit was ipso facto also evidence in the other. This is borne out by the remarks which he made in the course of the trial: “If the amended defence and the copies of the judgments are served I think there should be no further objection to admissibility.” Coun­sel for the Ejovbes and the Iwrekas may have been of that opinion too at one time since he did not object to the cases, although some of them only con­cerned the Ejovbes, but indeed cross-examined about them. I think that in the peculiar circumstances of this case the striking out of paragraph 5 did not prevent the Native Court cases being used against the Ejovbes. The next ground of appeal reads:­


“That the Learned Trial Judge was wrong in law in awarding De­claration of Title by relying solely on some Native Court Judg­ments which were not properly certified and had nothing to do with the land the subject matter of the dispute.”


The remarks I have made concerning the accuracy of ground 4 apply equally to this ground. The ground itself is a two-pronged attack on the admissibility of the Native Court cases. The first is that they were not properly certified. This objection cannot apply to Exhibits “4” and “6” since they were both pro­duced without objection and they appear moreover to have been properly certified. Exhibit “5” was not properly certified and should not have been admitted in evidence. The reasons given by the learned trial Judge for admit­ting that document notwithstanding its non-certification is clearly fallacious. Objection was taken to Exhibit “14” on the ground of non-certification and evidence was led on the point. The evidence shows that the document was certified by one Joseph Idogun, a Treasury Clerk of the Central Urhobo Dis­trict Council, who was in charge of the Council store in which the relevant re­cord book was kept. It was he who made the copy and who subsequently cer­tified it. The copy was issued on payment of the normal charge for which an official receipt was issued. In my view the witness, a public officer, had suf­ficient custody of the record properly to issue certified copies thereof. The first part of this ground of appeal consequently fails, except as regards Exhibit “5.”

The second prong of the attack is that the Native Court cases did not re­late to the land in dispute in the present case. The learned trial Judge found that they did, but did not explain in his judgment how the land, the subject of the Native Court cases, was identifiable with the land in dispute in the pre­sent case. Mr. Fani-Kayode, the respondents’ Counsel, has, however, satis­fied me that the Native Court cases concerned at any rate portions of the land in dispute in the present case. The evidence in Exhibit “4” shows that that case concerned Okomu and Ofori lands. The title of the Owhrodes to those lands was confirmed. If one looks at the plans produced by the Ejovbes and the Iwrekas, Exhibits “T’ and “3,” one will see that Ofori land is admitted to be within the land in dispute. It is also clear that the land in dis­pute in Exhibit “4” and Exhibit “14,” are the same. The evidence in Exhibit “14” however, shows that the land extended from the Owhrodes’ village in the northwest to Ogegde waterside to the east and included almost all the land occupied by the Ejovbes. Exhibit “6” which was a case between the community of Otu-Udu to which the Owhrodes belonged and an individual belonging to the people of Iwreka, appears to relate to land to the south of the land in dispute and can thus have no direct bearing on the issue in the present case.


In my view the learned trial Judge was right in regard to the identity of the land.


Another ground of appeal reads:­


“That the learned Trial Judge was wrong in law by admitting parol evidence to contradict the Deed of Lease and thereby hold­ing that one of the signatories to the Lease, the late Chief Ogegede, signed the said lease by virtue of the fact that he had a building on the land.”


The lease in question was made between Chiefs Dukuye, DaMr. aye, Otie and Ogegede for and on behalf of the people of Owhrode, Otutu and Jorofe as lessors and a British company as lessees and was in respect of a piece of land near the creek and included in the land in dispute and occupied by the Ejovbes. The lease did not state what was the title of the various chiefs who signed it as lessors and some evidence was led, without objection, on this point. From that evidence and all the surrounding circumstances the learned trial Judge concluded that “the participation of Chief Ogegede of Ejovbe in the execution of this deed can be explained (and was explained) by the fact that he was in actual occupation of part of the land sought to be leased.” In my view no evidence was led to contradict the lease as alleged, but merely to explain it and for that purpose it was perfectly admissible (see section 132 Evidence Ordinance Cap. 63).

The last ground of appeal is that the verdict is against the weight of evi­dence. In my view there was evidence upon which the learned trial Judge could reasonably come to his decision. He erred, however, in relying on Exhibit “5” which ought not to have been admitted in evidence at all. Sec­tion 225 sub-section (1) Evidence Ordinance provides:­


“The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted can­not reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.”


The learned trial Judge used Exhibit “5” partly to discredit the traditional history of the Owhrodes and partly to reaffirm the title of the Owhrodes to Okomu land. It has very little evidentiary value and it is, in my view, reason­able to assume that it did not materially affect the decision of the case. In the result this appeal fails and is dismissed with costs assessed at £72.0.0d.


COUSSEY, Ag. F.J.: I concur.


DOVE-EDWIN, Ag. F. J.: I concur.


Appeal Dismissed.



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