➥ CASE SUMMARY OF:
Cosm As Ezukwu v. Peter Ukachukwu Jude Ukachukwu (SC. 160/2000, 2 July 2004)
by Branham Chima.
➥ ISSUES RAISED
Exclusive possession of land;
Title to land;
Trespass to land;
Proof by traditional history;
Identity of land.
➥ CASE FACT/HISTORY
As formulated in paragraph 17 of their pleadings, the reliefs sought by the plaintiffs against the defendant are:- “(1) A declaration that the plaintiffs are entitled to the customary right of occupancy to a piece of parcel of land known as and called “ALA OGBUTU” situate at Egbuoma in the Ohaji/ Egbema/Oguta Local Government Area within the Oguta Judicial Division with an annual value of N10.00 (Ten naira). N20,000 (Twenty thousand naira) being general damages for trespass to the said land. Perpetual injunction restraining the defendant, his servants or agents from entering the said land again.”
For the plaintiff, the land in dispute which is verged pink in his survey plan exhibit ‘A’forms part of a larger parcel of land called ‘Ogbutu’ land and has been from time immemorial the property of his community. It is situated in Egbuoma in the Ohaji/Egbema/Oguta L.G.A. The original founder of the land was his great ancestor Obaji a renowned hunter who together with his brothers deforested the virgin land and exercised thereon maximum acts of ownership. After the death of Obaji, the land devolved on the named successive heads of the family until it passed over to the original 2nd plaintiff without any interference or hindrance from anybody. The ‘Ogbutu’ land derived the name from the ‘utu’, that is, the fruits growing on it much of which has now disappeared due to farming activities on the land. It is the plaintiff’s case that as owners of the land in dispute his people and before them their ancestors had been farming the land, reaping the economic crops thereon. During each farming season, the land is apportioned among the villagers, who in turn apportion their shares to their members for cultivation. The plaintiff further alleged that some years ago, the defendants’ father Nwokocha Ukachukwu was introduced to the plaintiff’s people by one Chief Udeze Anunihu from Muojinta as a prospective tenant on the land for the purpose of harvesting palm fruits on annual rental of £10.00 (N20.00). With the permission of the plaintiff’s people, the defendants’ father was allowed to build huts for harvesting the palm fruits but he was not permitted to build permanent buildings. The defendants’ father continued to pay the yearly rent till sometime in 1982 when it was discovered that he had clandestinely brought in some strangers as tenants on the land on the pretext that he was the landlord. On account of that, the plaintiff’s people chased out the defendants’ father and those he put on the land. Sometime in 1983, the defendants’ father broke into the land in dispute and bulldozed the cassava plantation of the plaintiff’s people and in addition started asserting ownership of the land in dispute. The matter was reported to the police who advised the plaintiff’s people to seek civil remedy hence the proceedings leading to this appeal.
The case for the defendants is that the land in dispute also verged pink in their survey plan exhibitis situated at Ose-motor known as Oguta III in Ohaji/Egbema/Oguta L.G.A. and is called “Ogbautu” land. The original founder of the land was their ancestor Ezike-Ose from Obeagwa in Oguta who first settled and lived on the land and cultivated it with his brother. The land subsequently devolved on the defendants’father through the descendants of the original founder. It is the defendants’ case that the land in dispute is not “Ogbutu” but “Ogbautu” because of the termites and insects, which infested and ate up the crops planted on the land. Because of the menace of the termites (utu), it became the custom of the defendants’ people to perform some sacrifice on the land so as to appease the gods for a rich harvest. The defendants asserted that since the land devolved on A their father, he had been in exclusive possession thereof farming on portions of the land and letting and leasing other portions to tenants including the plaintiff’s people who paid customary tributes to the defendants’ father. The defendants denied that Udeze Anunibu introduced their father to the plaintiff’s people as a tenant and asserted on the contrary that the said Udeze Anunibu was their tenant. The defendants’further alleged that their father built five houses on the land in dispute. One of the houses was a permanent structure of four rooms and a parlour built in 1974. Some of these houses were destroyed when the plaintiff’s people invaded the defendants’ tenants in an attempt to deprive the defendants’ people of the land in dispute. Finally the defendants maintained that the plaintiff is not entitled to his claim.
After reviewing the evidence adduced on both sides and the addresses of learned counsel made on their behalf, the learned trial Judge, Ihekire J, upheld the case for the defendants and accordingly dismissed the plaintiff’s claims. His appeal to the Court of Appeal, Port-Harcourt Division was similarly dismissed hence he has further appealed to this court against the judgment of the Court of Appeal, which upheld the decision of the trial court.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether the lower court was right in holding that the land in dispute is situate at Ose-motor and not Egbuoma, and thereby holding as per judgment of the trial court that the boundaries were not proved and consequently dismissed the appellant’s case?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE IDENTITY OF THE LAND IS NOT IN DISPUTE
‘In the case in hand, both parties tendered by consent, the survey plan of the land in dispute. The appellant tendered Exhibit “A” while the respondents relied on Exhibit B. On p. 110 lines 28 to 31, the learned trial Judge held as follows:- “The identity of the land in dispute is not in doubt. Both parties agree that the land in dispute is a portion of a larger Ogbautu Land.” In my humble view, having found that the identity of the land in dispute was not in doubt, it is not necessary to determine whether the land is in Egbuoma or Ose-motor. The appellant has canvassed the question of the learned trial Judge not visiting the locus-in quo to ascertain the exact location of the land in dispute having regard to the conflicting evidence in that regard. That question was not canvassed in the two lower courts. It therefore constitutes a fresh issue before this court. It is the practice that a fresh issue cannot be entertained on appeal without the leave of this court. No such leave was sought and granted by this court and as a result that issue is incompetent. See the following cases – Obiakor v. The State (2002) FWLR (Pt. 113) 299, (2002) 10 N.W.L.R. (Pt. 776) 612 at 626, London Chatered Bank of Australia v. White (1987) 4 A.C. 413, Kabaka’s Government and Another v. Attorney-General of Uganda and Anor (1965) 3 W.L.R. 512 or (1966) A.C. 1, Attorney-General of Oyo State v. Fairlakes Hotels Ltd. and Ors (1988) 5 N.W.L.R (Pt. 92) 1 at 29; (1989) 5 N.W.L.R. (Pt. 121) 255. It is my considered view that the issue under consideration does not avail the appellant.’
THE TRIAL JUDGE PREFERRED THE CASE OF THE RESPONDENT BASED ON TRADITIONAL HISTORY
‘As can be gleaned from the above excerpts, the learned trial Judge having found that the evidence of recent acts of the respondents’ people on the land in dispute preponderated over that of the appellant’s community concluded that the traditional history of the respondents is more probable than that of the appellant and it is for those reasons that the appellant’s case was dismissed and as I indicated earlier on, the dismissal did not turn on whether or not the identity of the land in dispute was established.’
RESPONDENT NEVER ADMITTED A DE JURE POSSESSION OF THE APPELLANT
‘In this regard, paragraphs 9, 11, 13, 14, 15, 16 and 20 of the respondents’ Amended Statement of Defence are relevant. The averments in those paragraphs show clearly that the respondents’ people have been farming on portions of the land, in dispute; the respondents’ father built houses both permanent houses and huts on the land; therespondents’ people granted portions of the land to tenants from other places including the appellant’s community for farming purposes. The implication is that both the respondents, as well as the members of the appellant’s community and others were farming on the various portions of the land in dispute. In those circumstances, it cannot be said that the respondents admitted the appellant’s people were in exclusive de jure possession of the land in dispute. It is therefore my view that the provisions of section 146 of the Evidence Act does not avail the appellant. For the various reasons given, I hold that the issue under consideration must be resolved against the appellant.’]
.
.
↪️ II. Whether there was proof of trespass as to entitle the plaintiff to the relief of injunction against the defendants?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[APPELLANT’s COMMUNITY WAS NOT IN EXCLUSIVE POSSESSION OF LAND & DID NOT SHOW ANY ACT OF TRESPASS DONE BY THE RESPONDENT
‘Firstly, the appellant and his community were not in exclusive possession of the land in dispute. It is a correct statement of law that a claim in trespass is not dependent on proof of title to land. A plaintiff who fails to prove title may not necessarily fail in his action for trespass. If he establishes by evidence acts of exclusive possession, his claims for damages for trespass and an order of injunction may be granted: see Oluwi v. Eniola (1967 ) N.M.L.R 339 at 340; Olaloye v. Balogun (1990) 5 N.W.L.R. (Pt. 148) 24 at 39 – 40, Ajero v. Ugorji (1999) 10 N.W.L.R. (Pt. 621) 1 at 11, Amakor v. Obiefuna (1974) 1 All N.L.R. 119 at 126. As I had pointed out in the consideration of the last preceeding issue, the appellant’s community were not in exclusive possession of the land in dispute. Indeed the learned trial Judge found as of fact that the appellant’s Ihitte community were not owners in possession of the land in dispute. Secondly, the alleged act of trespass relied upon by the appellant which is to the effect that the respondents’ people bulldozed the cassava farm of the appellant and his community was not established. At page 120 of the record, the ninth finding of fact made by the trial Judge reads:- “(9) Nwokocha Ukachukwu never went into the land in dispute and bulldozed the cassava planted by the plaintiff ’s community.” Since the appellant’s community were not in possession of the land in dispute and no act of trespass thereon was established against the respondents, there was no factual basis to sustain an order of injunction. ’]
.
.
.
✓ DECISION:
‘I will similarly resolve this issue against the appellant. In sum, this appeal lacks substance. It is accordingly dismissed. I affirm the judgment of the lower courts. I award the sum of N10,000.00 costs to the respondents against the appellant.’
➥ FURTHER DICTA:
⦿ WHERE A RESPONDENT DID NOT FILE A CROSS-APPEAL, CANNOT RAISE ISSUES NOT CONTAINED IN ORIGINAL GROUND OF APPEAL
It seems to me obvious that the respondents’ issue under consideration is not predicated on any of the appellant’s grounds of appeal. The respondent did not file a cross-appeal. The position of the law is that where a respondent has not filed a cross-appeal, the role of the appellate court is limited to seeing whether or not the decision of the court below is correct. Such a respondent does not have an unrestrained or unbridled freedom of raising issues for determination which have no relevance to the grounds of appeal filed: See the case of Dr. J.M. Udom v. Micheletti and Sons (1982) 7 SCNJ 448 at 457; (1997) 8 N.W.L.R. (Pt. 516) 187. — Edozie JSC.
⦿ NAME OR ETYMOLOGY OF THE LAND IS NOT INDICATIVE OF OWNERSHIP
The trial court found in favour of the respondents but that finding is neither here nor there, because the name or etymology of the name of a piece of land is not necessarily indicative of the ownership thereof. In the case of Alhaji Aromire and 2 ors v. J.S. Awoyemi (1972) 1 A.N.L.R (Pt. 1) 101 at 113, this Court, per Coker J.S.C., held that no reliance can be placed on the differences in the names ascribed to the same portion of land in the vicinity. The difference in names will be immaterial if the identity of the land in dispute is otherwise not in dispute. In the same vein, the Court of Appeal, per Nnaemeka-Agu J.C.A., as he then was, in the case of Onwumere v. Agwunedu (1987) 3 N.W.L.R. (Pt. 62) 673 expressed the following opinion – “Now it has been decided by a long line of decided casesboth by this Court and the Supreme Court that when parties base their claims to land upon evidence of tradition and the evidence of tradition called by both sides to the suit is in conflict, the best way to decide which of the conflicting stories is the more probable is to test them from the background of facts within living memory. See on this Agedegudu v. Ajenifuja (1963) 1 All N.L.R. 109 at p. 115 to 117; Ogboide Aikhionbare and ors v. Omoregie and ors (1976) 12 SC 11. It is not a matter, which can be resolved on the credibility of witnesses or as the learned Judge has done by mere etymological approach when the names themselves and the ownership of the surrounding lands and some of the features on the land in dispute are parts of the conflict …” — Edozie JSC.
⦿ ANY QUESTION WHICH DOES NOT RESOLVE THE APPEAL ONE WAY OR THE OTHER IS NOT A PROPER ISSUE
It needs to be stressed that every point in controversy between the parties in an appeal is, in a loose sense, an issue. But for purposes of a brief, an issue is one, which is so crucial that if it is decided in favour of a party, he is entitled to win the appeal. Any question which does not adequately raise a substantial issue which if resolved one way or the other will affect the result of the appeal is not a proper issue for a brief. See Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 6 N.W.L.R. (Pt. 199) 501 at 542. — Edozie JSC.
⦿ WHERE TRADITIONAL HISTORIES ARE PLAUSIBLE, COURT WILL RELY ADDITIONALLY ON ACTS OF OWNERSHIP & LONG POSSESSION
A party seeking a declaration of title to land is not bound to plead and prove more than one root of title to succeed but he is entitled to rely on more than one root of title. However, where as in this case, he relies on traditional history, and in addition acts of ownership and long possession predicated on the traditional history as pleaded, he is not entitled to a declaration of title based on the evidence of acts of ownership and long possession where the evidence of traditional history is unavailing: See Balogun v. Akanji (1988 ) 1 N.W.L.R. (Pt. 70) 301 at 232; Eronini v. Iheuko (1989) 2 N.W.L.R. (Pt. 101) 46 at 61. However, such evidence of acts of ownership and long possession becomes relevant where the traditional histories given by both sides though plausible are in conflict. In such a situation, it will not be open to the court simply to prefer one side to the other. To determine which of the histories is more probable, the courts have called in aid the principle enunciated in the celebrated case of Kojo II v. Bonsie (1957) 1 W.L.R. 1223 which is to the effect that the preference of one history to the other as being more probable would depend on recent acts of ownership and possession shown by the parties that the court would need to consider to make up its mind. See Ohiaeri v. Akabeze (1992) 2 N.W.L.R. (Pt. 221) 1 at 19, Ekpo v. Ita (1932- 34) 11 N.L.R. 68, Mogaji v. Cadbury (Nig) Ltd. (1985) 2 N.W.L.R. (Pt. 7) 393. — Edozie JSC.
⦿ DIFFERENCE BETWEEN ‘OCCUPATION’ & ‘POSSESSION’ IN LAND LAW, AND THAT WHICH CAN LEAD TO PRESUMPTION OF OWNERSHIP
But the real problem of such cases is that quite often, as in this case, there is tendency to confuse possession with mere occupation. ‘Occupation’ as used in relation to land entails mere physical control of the land in the time being. It is a matter of fact. Such a control may have originated from permission from the true owner; it may have been by stealth; or it may be a tortuous trespass. Possession of land, on the other hand, may, sometimes entail or even coincide with occupation of it; but is not necessarily always synonymous or coterminous with it. A man, such as a landlord who collects rents from his tenants, may be in legal possession of the land even though he does not set his feet on it. This is why distinction is often made between de facto possession, which is mere occupation and de jure possession which entails possession animo possidendi with that amount of occupation, control or even, sometimes, the right to occupy at will is sufficient to exclude other persons from interfering. See Lasisi Akanni Buraimoh v. Rebecca Ayinke Bamgbose (1989) 3 A N.W.L.R. (Pt. 109) 352 at p. 361. Within the meaning of this concept of possession, a man ordinarily living in Maiduguri may be in possession of a vacant house in Lagos if he is in possession of the keys. But in my opinion, that possession admission of which is capable of raising a presumption of ownership of land under section 145 of the Evidence Act must be that which amounts to de jure exclusive possession not mere occupation.” (Italics for emphasis ) — Edozie JSC.
⦿ A PARTY NEED NOT PROVE TITLE TO BE ENTITLED TO DAMAGES FOR TRESPASS OF LAND
It is a correct statement of law that a claim in trespass is not dependent on proof of title to land. A plaintiff who fails to prove title may not necessarily fail in his action for trespass. If he establishes by evidence acts of exclusive possession, his claims for damages for trespass and an order of injunction may be granted: see Oluwi v. Eniola (1967 ) N.M.L.R 339 at 340; Olaloye v. Balogun (1990) 5 N.W.L.R. (Pt. 148) 24 at 39 – 40, Ajero v. Ugorji (1999) 10 N.W.L.R. (Pt. 621) 1 at 11, Amakor v. Obiefuna (1974) 1 All N.L.R. 119 at 126. — Edozie JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Edozie, JSC.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
