GIlbert Onwuka & Ors. V. Michael Ediala & Anor. (SC.18/1987, 20 January 1989)


GIlbert Onwuka & Ors. V. Michael Ediala & Anor. (SC.18/1987, 20 January 1989)

by Branham Chima.

Customary land;

In the trial Court the two actions filed by the opposing parties contesting the ownership of the same piece of land, though ascribing to it different names, were consolidated.

In suit No. HOG/9/85 filed by the plaintiffs for themselves and on behalf of Umuezeafor Kindred of Ohaji/Egbema/Oguta Local Government Area, as per their paragraph 9(a) of their Statement of Claim, the plaintiffs claim the following reliefs against the defendants:- “(a) Declaration that the piece of land known and called “NWAOKPEKWE” land annual value N20.00 situate at Obile Ohaji in the Oguta Judicial Division and more particularly shown in plan No.ECIS/1162/81 dated 20th of May, 1981 has been in the customary possession of the plaintiffs who are consequently entitled to customary right of occupancy. (b) N500.00 general damages for trespass to the said land. (c) Injunction restraining the defendants by themselves, their servants and agents from entering the said land acting in any manner in violation of the plaintiffs’ customary rights of occupancy.”

In the cross-action filed as suit No.HOG/15/81 the defendants as plaintiffs claim for themselves and as representing Umuekwodi Kindred of Umuosu Obile in Ohaji/Egbema/Oguta Local Government Area, the following reliefs against the plaintiffs/defendants, as contained in paragraph 18 of the defendants/plaintiffs’ statement of claim – “(a) Declaration that the piece or parcel of land known as and called OKWUAGBOSO land situate at Obile in Ohaji/Egbema/Oguta Local Government Area in the Oguta Judicial Division of Imo State with annual value of N30.00 (Thirty Naira) is in the customary possession and ownership of the plaintiffs, and the plaintiffs are entitled to customary right of occupancy to the said piece/parcel of land. (b) N600.00 (Six Hundred Naira) general damages for trespass to the said land.”

At the end of the hearing the learned trial Judge in a considered judgment and after reviewing the evidence proffered, came to the following conclusions- “I believe the evidence of the plaintiffs and their witnesses on these and other relevant issues and reject the evidence of the defendants and their witnesses in so far as such evidence tended to contradict the material aspects of the evidence of the plaintiffs and their witnesses. The defendants were ungrateful to the plaintiffs who had allowed some of the members of the defendants’ kindred to live on a part of the land in dispute by turning round to claim the land and in spite of the decisions of the Eze, Chiefs and elders of their community they persisted in their claim and unlawful acts over the land. I hold that the plaintiffs have proved their case before this Court and they are entitled to their claims. Accordingly, I declare that the land in dispute as shown in Exhibit A has been in the possession of the plaintiffs and that they are entitled to a customary right of occupancy of the said land. The plaintiffs are entitled to damages for the trespass committed by the defendants upon the land in 1981 by clearing part of it for farming purposes and I award the sum of N400.00 against the defendants. The defendants are hereby restrained by themselves, their servants, agents and/or workmen from entering upon any part of the land in dispute except the buildings and adjoining premises on which some members of the Defendants’ kindred live with the permission of the plaintiffs. I dismiss in their entirety the claims of the defendants against the plaintiffs.”

On appeal, in a considered judgment of the Court of Appeal delivered by Olatawura, J.C.A., with which both Aseme, J.C.A. and Belgore, J.C.A. (as he then was), concurred, he described the appeal as unmeritorious and dismissed it with N250.00 costs in respondents’ favour.

A further appeal by the appellants against the dismissal of their appeal by the Court of Appeal has now been lodged in this court.


↪️ I. Whether the respondents (as plaintiffs) discharged the onus of proof required of a claimant for a declaratory judgment to entitle them to the declaration of customary right of occupancy granted them by the trial court and affirmed by the Court of Appeal?

‘In the instant case, the respondents had led evidence, both oral and documentary, in proof of their customary title to the land in dispute. There was evidence of repeated acts of ownership by the respondents with respect to other places connected with the land in dispute as to give rise to the inference that they are the owners. In Jones v. Williams 2 M and W 326 at 331, it was held that – “evidence of acts in another part of one continuous hedge adjoining the plaintiffs land was admissible in evidence on the ground that they are acts as might reasonably lead to the inference that the entire hedge belonged to the plaintiff.”’

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‘In my opinion the learned trial Judge, on the evidence evaluated and accepted by him in preference to that of the appellants as regards the numerous lets of user, was right to draw the inference of customary ownership by the respondents of the land in dispute. It is not enough for the appellants in an action like this one, to show possession of some portions within and surrounded by the respondents’ land as shown in Exhibit A and then argue that they have proved their case; and having failed to prove their case the proper judgment should be for the respondents and not an order for a retrial.’

‘There was evidence also of occupation and use of the land over a considerable long period without let or hindrance from the appellants. The learned trial Judge considered the evidence adduced by both parties on this issue and came to the following conclusions:- “The evidence of the parties before me does not show that any of the parties made the extent of the land an issue in this case. Each of the parties relied on traditional history and long possession. The plaintiffs gave evidence that they have from time immemorial exercised maximum acts of ownership and possession over the land in dispute, farming thereon, establishing plantations, thereon and exploiting timber from the land. The plaintiffs said the area of the land they sold to P.W.3, Robinson Muoneke, was part of the land in dispute before it was carved out and sold to P.W.3. The P. W.3 himself said since the land was sold to him by the plaintiffs and he took possession of it, he had been seeing the plaintiffs use the land in dispute. The defendants have with equal vigour testified that they inherited the land in dispute from their ancestors and have exercised maximum acts of ownership and possession over the land, farming thereon, exploiting timber and renting to non-members of their kindred for farming purposes. The defendants said that some members of their kindred have their houses on a part of the land in dispute. The defendants also claimed that in 1949 and again in 1976 they allowed the 1st plaintiff to establish cocoa and palm plantations respectively on parts of the land in dispute. The plaintiffs have denied that the defendants permitted the 1st plaintiff to establish cocoa and palm plantations on the land in dispute. Rather the plaintiffs asserted that they allowed some members of the defendants’ family to erect buildings on part of the land in dispute. The 1st plaintiff’s cocoa plantation is very close to the houses of the Defendants’ people. The plaintiffs are in effect saying that the defendants’ people who live on the land in dispute are their tenants. The defendants have also said that their farm road passes through the land in dispute. According to exhibit J, what is shown as the defendants’ farm road is the road leading from Asaa to Egbema. The P.W.2 testified that during the arbitration he and his chiefs and elders held between the parties over the land in dispute the defendants insisted that since their road runs through the land they should own the land. The 1st plaintiff testified that his cocoa plantation is 15 acres and his palm plantation is 17 acres. If the defendants were broadminded enough to grant 15 acres of land to the 1st plaintiff to plant cocoa would they have granted to him an area of land very close to their home-stead? I think not. If indeed they granted him the area on which he planted palm trees in 1976 as the defendants claimed how did they turn round to write to the Small Holder Oil Palm Project that the land was in dispute, a letter the 1st defendant admitted they wrote? There is no evidence before me that the negotiation for the grant broke down or that he went beyond the grant. What sounds more understandable to me is the evidence of the 1st plaintiff that when he received exhibit E his people threatened to ask out the defendants’ people who live on part of the land in dispute and as a result of this threat the defendants’ people wrote Exhibit F withdrawing their former complaint. On this claim and counterclaim as to who allowed the other to use part of the land in dispute, I prefer the evidence of the plaintiffs that they allowed some persons from the Defendants’ kindred to build on part of the land in dispute.”’]
The appeal fails and is accordingly dismissed with N500.00 costs to the Respondents.‘’

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It was the appellants’ contention that the claims of the parties were based on the Land Use Act. 1975. That was not disputed as the suit was filed in the trial High Court in 1981. On that date the Land Use Act had become applicable to all land in Imo State of Nigeria and by virtue of section 1 of the Act, same has been vested in the Governor of that State on that date. This provision takes away the freehold title vested in individuals or communities but not the customary right of use and control of the land. Section 36(1) does not enlarge the right of a customary tenant to any piece of land in non-urban area which was, at the commencement of the Act in his possession and occupation. A customary tenant remains so and is subject to the conditions attached to the customary tenancy. — Wali JSC.

A person or Community that had title to a parcel of land before the coming into force of the Land Use Act, 1978 is deemed to be a holder of a right of occupancy, statutory right of occupancy or customary right of occupancy, depending on the status of the land – whether it is in urban area or in non-urban area. See Section 34(2), (3) and (6) and Section 36(2), (3) and (4) of the Land Use Act. — Wali JSC.

The accepted methods of proving customary ownership of land are- (1) Traditional History of ownership; (2) Where the evidence in (1) above is found to be inconclusive, then proof of acts of occupation and use of the land over a considerable long period without challenge or disturbance from any other claimant and (3) Where (2) above fails, proof of exclusive possession without permission. See – Ekpo v. Ita 11 N.L.R. 68; F.M. Alade v. Lawrence Awo (1975) 4 S.C.215. — Wali JSC.

I agree with the submission of the learned Counsel for the respondents that the order of injunction granted by the learned trial Judge against the appellants is vague and does not correspond with the relief sought. And that this court in the exercise of its powers which are conferred upon it by Section 22 of the Supreme Court Act, 1960 should vary the order. Accordingly, I endorse the varied order as contained in the judgment of my learned brother Wali, J.S.C. — Uwais JSC.

It was not the aim of the Land Use Act to convert a tenant into an owner merely by the fact that such tenant was in occupation of his landlord’s land before the inception of the Act. — Oputa JSC.

Re-evaluation suggests and presupposes a prior evaluation. If evidence has already been evaluated by the trial Court, on what grounds, on what basis, on what principles would an appellate court undertake another re-evaluation of the same evidence? Before tackling this main issue, it may be necessary to dispose of a subsidiary but related issue: What does evaluation of evidence consist of? What is the meaning of the expression evaluation? To evaluate simply means to give value to, to ascertain the amount, to find numerical expression for etc. Thus if a plaintiffs case is supported by witnesses, while the defendant’s case is supported by 6 witnesses then the numerical expression, the quantum of evidence, the amount, would be 4 to 6. If cases are decided solely by the number of witnesses called by either side, then in the above instance the plaintiff will lose, having a preponderance of 6 witnesses to 4 witnesses in the scale against him. Now talking of scale naturally leads one to the famous dictum of Fatayi Williams, J.S.C.(as he then was) in A.R. Mogaji and ors v. Madam Rabiatu Odafin and ors (1978) 4 S.C.91 at 93:- “When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which have been given to the totality of the evidence before him, (the trial Judge) ….. Therefore in deciding whether certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial Judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it ….” (italics ours). This scale though imaginary is still the scale of justice, and the scale of truth. Such a scale will automatically repel and expel any and all false evidence. What ought to go into that imaginary scale should therefore be no other than credible evidence. What is therefore necessary in deciding what goes into the imaginary scale is the value, credibility and quality as well as the probative essence of the evidence. — Oputa JSC.

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My only quarrel with the judgment of the learned trial Judge is that he recorded his findings before indicating what side he believed. This is a very wrong approach. After a review of the evidence of witnesses who gave conflicting accounts, the trial Judge ought to have indicated what side he believed before recording his findings because it is on the credibility of those witnesses that proper findings can be made. If a witness is not believed no finding of fact can be founded on his evidence. — Oputa JSC.

In Adeyeye v. Ajiboye (1987) 3 N.W.L.R. (Pt.61) 432 at p.451, I referred to what I thought was the proper approach to the issues of fact and findings of fact by trial Courts viz: “The proper approach for any trial court is first set out the claim or claims; then the pleadings, then the Issues arising from those pleadings. Having decided on the issues in dispute the trial Judge will then consider the evidence in proof of each issue, then decide on which side to believe and this has got to be a belief based on the preponderance of credible evidence and the probabilities of the case. After this the trial Judge will then record his logical and consequential findings of fact. It is after such a finding that the trial court can then discuss the applicable law against the background of his findings of fact.” — Oputa JSC.

An order of injunction should neither be vague nor uncertain. It should be clear and precise and it should inform the defendants what the opinion of the court is as to the limits of their rights and/or privileges in and over the land in dispute. The order should not, as in this case, be such as to expose the defendants/appellants to the consequences of violating a vague and imprecise injunction: Cother v. Midland Railway Co. 41 E.R. Ch. 1025; Karama and ano. v. Aselemi and ors. 4 W.A.C.A. 150. Chief Onyeama for the Plaintiffs/Respondents rightly conceded that the injunction granted in this case was vague and that it will thus be difficult to enforce. — Oputa JSC.

Wali, J.S.C.

Mr. Ahamba.

Chief Onyeama.



In Kojo II v. Bonsie (1957) 1 W.L.R. 1223 it was held that- “Where there is a conflict of traditional history which had been handed down by words of mouth one side or the other must be mistaken, yet both may be honest in their belief. In such a case, the demeanour of witnesses is of little guide to the truth. The best way is to test the traditional history by reference to facts in recent years as established by evidence and by seeing which of the two competing histories is more probable.”





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