CHIEF AWARA OSU & Others v IBOR IGIRI & Others (SC.1441 1985) [1988] NGSC 10 (5 February 1988)


CHIEF AWARA OSU & ORS (APPELLANT)

v.

IBOR IGIRI & ORS (RESPONDENT)

(1988) All N.L.R. 129

 

Division: Supreme Court Of Nigeria

Date of Judgment: February, 5, 1988

Case Number: (SC.1441 1985)

Before: Nnamani, Uwais, Belgore, Wali, Craig, J.J.S.C

 

The appellants were the plaintiffs who initiated the proceedings leading to this appeal in the customary court, known as District Court of Bahumono now in Cross River state. The cause of the action was an expanse of land reflected in the two plans tendered and admitted as Exhibits.

The plaintiffs herein appellants testified that they allowed the respondents into the area of their plan verged pink as yearly tenants over a period of time on payment of tributes, but later the respondents started encroaching into the area verged yellow. Chief Awara Osu as an elder of the plaintiffs had to invoke juju curse but the elders of the community believing in the efficacy of juju, prayed him to revoke the curse.

A settlement was arranged where-of the appellants were prevailed upon to give parts of their land on the portion verged pink to the respondents on the undertaking by the respondents to surrender part of their own land to the appellants.

The appellants gave traditional history of the land dating back to nine generations. The respondents seized advantage of the settlement by further encroachment and consolidation on the disputed land but declined on their own undertaking to give part of their own land to the appellants.

This led the appellants to litigation as each party must have regarded the attempted settlement, Exhibit C as no more binding. By majority decision, the district court gave judgement to the plaintiffs but the Chief Magistrate Court upset the judgement on appeal.

On a further appeal to the High Court, the judgement of the Chief Magistrate Court was set aside on the ground that the learned Chief Magistrate wrongly applied section 40 of the land Use Act in coming to his decision. On further appeal to the court of Appeal, the appeal was upheld, in essence, the judgment of the Chief Magistrate was restored. Against the decision of the Court of Appeal the appellants being dissatisfied, therefore appealed to the Supreme Court.

HELD:-

(1)     Where land ownership is claimed in customary law, the best evidence is that of traditional title proved by way of ancestral history of ownership.

(2)     Customary Courts are not bound by the evidence Act unless subsequently so conferred with the power to apply it. The Court hearing appeals from customary or Area or District Courts whatever designation of those courts presided over by lay men should be wary to apply the strict technicalities of procedure or Evidence Act in reviewing those appeals if such application will destroy the substance and merit of the matters heard in those inferior courts.

(3)     The meeting at which the parties met leading to Exhibit C cannot be regarded as a Tribunal or even Arbitration and Exhibit C could not in law be regarded as a strict legal document and therefore could not be res judicata. A fortori, it could not be estoppel as both parties regarded it as a dead document.

(4)     Exhibit C could never be said to have been caught up by section 131 (1) of the Evidence Act because of the provision of section 1(4)(c) of the same Act which precludes the application of the Act to any judicial proceedings in the customary courts.

Appeal allowed.

N. N. Anah (with him P.N. Umeh; V.I. Aganekwu)

H. I. Okoli and E.O.E. Ekong for the Appellants.

A. O. Mogboh, S. A. N. (with him A. O. Onua for the Respondents)

Cases referred to:-

(1)     Agedegudu v. Ajenifuja (1963) 1 All NLR 187

(2)     Afonja v. Aiyelagba (unreported FSC.317/1961 decided on 11/12/1962

(3)     Akintola v. Oluwa (1962) 1 All NLR pt. II 224

(4)     Karimu v. Fajube (1968) N.MLR 151

(5)     Kwasi v. Larbe XIII WACA 76

(6)     Nwabia v. Adiri (1958) 3 FSC 112/114

(7)     Nwokolo Oliko & anor v. Ofili Okonkwo & ors. 1970 1 All NLR 86

(8)     Olire v. Obodo 3 F.S.C. 84.

Statutes referred to:-

(1)     Evidence Act

(2)     Land Use Act.

Nnamani, JSC. I had a preview of the judgment just delivered by my learned brother, Belgore, J.S.C. and I entirely agree with his reasoning and conclusions.

It seems to me too that the learned trial Judge who heard this matter on appeal from the learned Chief Magistrate dealt admirably with all the issues that arose. His judgment was set aside by the Court of Appeal, Enugu Judicial Division, on the sole ground of the effect which ought to be given to Exhibit C, an agreement between the parties to which I shall make reference below. Indeed the only ground argued by respondents herein, who were appellants at the Court of Appeal, was.

"The learned trial Judge of the High Court erred in law by not considering the effect or importance of Exhibit 'C', a document executed by the parties and tendered in Court, in settlement of suit 14/76 between the same parties over the same parcel of land which the defendant both in this suit and in that case called IDO ORAH land or IDO ORA"

Phil-Ebosie, J.C.A. who wrote the lead judgment of the Court of Appeal had concluded thus:-

"The learned trial Judge also in interpreting Exhibit 'C' observed in his judgment that the Exhibit contained the term. It is my view, however, with respect that the learned trial Judge was wrong as nowhere in Exhibit 'C' can such a term be found or inferred. As to the evidence of the plaintiff Section 131 (1) of the Evidence Act makes it inadmissible as its effect would be to add, alter, or vary a contract that has been reduced to writing"

Two additional grounds of appeal in this Court show the gravamen of the appellants' complaints against that judgment of the Court of Appeal.

1.      The learned Justices of the Court of Appeal erred in law by treating either Exhibit 'B' or 'C' as res judicata or an estoppel.

Particulars

2.      The learned Justices of the Court of Appeal erred in law by holding that by Section 131(1) of the Evidence Act the Plaintiffs/Appellants could not lead evidence of the conditions which gave rise to Exhibit 'C'."

It is pertinent to mention that at the hearing of this appeal, Learned Senior Advocate appearing for the Respondents, Mr Mogboh indicated that he was not insisting on Exhibits 'C' being a basis for res judicata but for issue estoppel. This considerably narrowed the matters to be decided in the appeal. Put briefly, as these matters have been fully dealt with by my learned brother, Exhibit 'B' was the proceedings instituted by the respondents in respect of the same land i.e. Suit 14/76. This Suit was withdrawn following some agreement between the parties. That agreement which was reduced to writing was tendered in the course of this Suit as Exhibit 'C'.

Looking carefully at Exhibit 'C' at page 30 of the Record, there is no doubt that it was signed by representatives of both sides-three ward heads and the group head of Ediba. It is clear that an attempt was made to demarcate the boundaries of both communities with the use of Okono trees. The agreement dated 26th April, 1976 recites that-

"the members of Enusokwe ward and Ezomo Ward in Ediba have to resolve to finding a solution to settle their land case dispute by getting together and peacefully entered the disputed land to create a boundary agreeable to the two parties" (Italics mine)

It then talked of a boundary southwards created and planted with 13 Okono trees at intervals. If, as the Court of Appeal held, no evidence could be introduced to explain, vary, or alter this agreement, then on the face of Exhibit "C" issue estoppel would have been well founded. In other words, when the appellants filed their Suit 14/78 in the District Court for declaration of title to the same land, they would have been met successfully with a plea that the issue of the boundary between their lands had been settled between the parties. But Section 131(1) of the Evidence Act on which the Court of Appeal relied for excluding any evidence which tended to explain or alter Exhibit 'C' is not applicable. Section 131(1) states:-

"When any judgment of any Court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings, or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases on which secondary evidence is admissible ... nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence. Provided that any of the following matters may be proved:-"

The Court of Appeal clearly lost sight of Subsection (c)-

"the existence of any separate oral agreement, constituting a condition precedent to the attacking of any obligation under any such contract, grant or disposition of property."

There was evidence by the 1st Plaintiff/Appellant, which the trial District Court accepted, that Exhibit 'C' was predicated on the understanding that both parties would make grants of their land. While the Appellants granted their own land for purposes of peace, the respondents granted none.

In any case, even if subsection (c) did not apply, the whole of Section 131 (1) is still rendered inapplicable by the provisions of Section 1(4)(c) of the Evidence Act which provides that, "(4) This ordinance shall apply to all judicial proceedings in or before any court established in the Federation of Nigeria but it shall not apply ... (c) to judicial proceedings in or before a native court unless the Governor in Council shall by order confer ... jurisdiction ... ordinance"

The present suit was before the District Court which was native court.

Evidence to explain or alter Exhibit 'C' was therefore admissible. Such evidence, which was in abundance, was accepted by the trial Court. Not only was there evidence that the respondents did not bring their own land, a condition precedent for the enforcement of Exhibit 'C', On page 37, the defendant during examination by Court said as follows:-

Q.      Did both of your people agreed (sic) to the boundary fixed in 1976?

A.      Yes.

Q.      Do you still stand on the agreement?

A.      No."

The plaintiff in evidence had concluded at page 13 of the record,

"He told the defendants to go to their land and share to me. On saying this to the defendants I told Oyong that if the defendants failed to share land to me, my own land should not be tampered with"

Once Exhibit `C' is destroyed, I cannot see the basis on which the Court of Appeal could have disturbed the judgment of the learned appellate Judge.

For these reasons, and for the more detailed reason given in the lead judgment, I allow the appeal, set aside the judgment of the Court of Appeal dated 31st July, 1984 and restore the judgment of the Appellate Judge of the Ikom High Court dated 6th February, 1981. I abide by all the other orders made by my learned brother, Belgore, J.S.C.

Uwais, JSC. I have had the opportunity of reading in draft, the judgment of my learned brother Belgore, J.S.C. I agree with him that this appeal should be allowed. I endorse the orders contained in the said judgment.

Belgore, JSC. The Appellants were plaintiffs and initiated the proceedings leading to this appeal in the customary court, known as District Court of Bahumono now in Cross River State. By majority decision the District Court gave judgment for the plaintiffs but the Chief Magistrate Court sitting at Ugep upset this judgment on appeal. When the appeal went to High Court sitting at Ikom the learned Judge in his appellate jurisdiction set aside the decision of the Chief Magistrate and restored that of the District Court. On further appeal to the Court of Appeal at Enugu, the appeal was upheld and in essence the decision of the Chief Magistrate, Ugep was restored.

The matter giving rise to the suit in the District Court is an expanse of land reflected in the two plans tendered and admitted each as Exhibit A. The Exhibit A of the plaintiffs, now appellants, is drawn on scale of 1:5000 metres while that of the respondents is on 1:2000 metres scale; the two plans are identical in features except that the latter is larger than the former because of the scale projection. The two plans indicate Rukura stream to the south. The area in dispute could be divided into two. The first part on the appellants' plan is verged pink and is to the eastern side; this part on the respondents' plan is not clearly demarcated but end at the eastern end of the other portion in dispute. The second part is verged yellow on both plans. The plaintiffs (appellants) testified that they allowed the defendants (respondents) into the area on their (plaintiffs') plan verged pink as yearly tenants over a period of time on payments of tributes, but later the respondents started encroaching into the area verged yellow. Chief Awara Osu for the plaintiffs had to invoke juju curse but the elders of the community, believing in the efficacy of the juju, prayed him to revoke the curse. A settlement was arranged whereof the appellants were prevailed upon to give parts of their land on the portion verged pink to the respondents on the undertaking by the respondents to surrender part of their own land to the appellants. The appellants gave traditional history of the land dating back to nine generations. The respondents seized advantage of the settlement by further encroachment and consolidation on the disputed land but reneged on their own undertaking to give part of their own land to the appellants. This led the appellants to litigation as each party must have regarded the attempted settlement, Exhibit C, as no more binding. The remarkable accuracy of the plaintiff, Chief Awara Osu, in describing the entire land in issue, including details left out by their own surveyor but shown in the respondents own plan, e.g the passage of Oba Stream, the Epinaosa Stream etc. might have convinced the majority in the District Court. For on the side of the respondents the DW4 Bassey Muze, gave their own natural boundary as "Oba Stream on the right" i.e. moving North-South from Water Board Premises. Their own plan, also Exhibit A, shifts the boundary quite some distance west of Oba Stream; even though this is indicated as boundary set after 1976 settlement. He claimed the land as his own and that his forefathers owned it; and that it was about seven years to the time he gave evidence in Court that his people started to build on the disputed land. Apart from baldly claiming that the land belonged to him because his forefathers owned it, his other reason was that he used to follow his father to the farm thereon and he was shown the boundaries. He agreed there were moves to effect settlement of the dispute out of Court and that Exhibit C was the settlement terms but that he was no longer standing-by that agreement.

Upon the evidence before it the majority judgment of District Court went in favour of the appellant. The minority judgment was based on "many years usage of the land together with the permanent buildings and economic trees planted which had been yielding fruits unchallenged since many years and plaintiffs' first witness answer that both parties use the land in common show that the claim is not justified ..."

The appellate Chief Magistrate at Ugep certainly got carried away by the provisions of Land Use Act 1978 and held that by virtue of S.40 thereof the District Court had no jurisdiction to award title to land but could only declare who had right of occupancy to the land. Secondly, he held that the evidence offered in the District Court was not sufficient to find for the plaintiffs. The Chief Magistrate gave his reasons by picking what he regarded as holes in plaintiff's case. The presence of yam barns and permanent buildings on the land put up by defendants without plaintiffs' consent are among these. He never believed that inpecuniousity of the plaintiffs preventing them from suing for these acts of trespass by defendants could be true. He held that the majority of the District Court ought not to believe the plaintiffs, because trees planted thirty eight years ago was long possession and continuous enough to arrive at presumption that the land belonged to the defendants. He never adverted to traditional history of the plaintiffs dating back to nine generations. He finally concluded that the jurisdiction of the District Court was ousted by the Land Use Act 1978 s.40; even if the jurisdiction was not ousted, he would have arrived at the conclusion that the evidence offered by the plaintiffs was not enough to grant their prayers and thus set aside the judgment of the majority of District Court and upheld the minority judgment. Against this an appeal was lodged at the High Court at Ikom.

The judge held that the Chief Magistrate wrongly applied s.40 Land Use Act 1978. He held that the Act merely provides that in case of declaration of title pending before any court before the commencement of the Act, the trial court should not award title if the case was completed after commencement, but to enter a verdict that a person is entitled to right of occupancy over the land. The appellate High Court judge held:

"From the facts in this present case in dispute to a great extent is land used mostly for farming with only a small portion of it used for residence. From my observation in the evidence adduced the plaintiffs relied on traditional evidence very strongly ancestral history being brought into focus, with a few acts of occupation by way of farming, while the defendants rely only on facts of occupation or possession of the land by putting up yam barns, palm trees and permanent buildings on the land. The district court in its majority judgment strongly relied upon facts of ancestral history so ably adduced by plaintiffs, upon the fact of permission being granted to defendants to use the land, and upon the features the court observed while inspecting the locus in quo, where by they found in favour of the plaintiffs.

But the minority judgment of the District Court which the Learned Chief Magistrate preferred on appeal, relied not on ancestral history of ownership at all but rather on being in possession of the land only for a long time hence the Defendants' only ground of appeal was that the declaration was made with their permanent buildings on the land. See page 48 line 5 of the Record of Proceedings. Doubtless it is a matter of common knowledge that in this part of the world permanent buildings belong not to ancient but to modern times. From the plans filed in this case by both sides (Exhibit `A') it is clear that both communities of Ezono Ward and Enusokwe ward have their main residential areas respectively outside the area in dispute; therefore at most in the past this land in dispute was only used for farming as shown in evidence. The six buildings put up must be of the recent past."

"Each party in this suit claim that they originally owned the land by inheritance, that they gave out a portion of it to the other party because they wanted it for farming. They each claim having worked and farmed on the land for a very long time before the other community came in to interfere. The District Court inspected the land; the majority believed the plaintiff story and rejected that of the Defendants, but the Chief Magistrate's Court preferred the defendant's story to the plaintiffs' own as did the minority decision. The big question as at now is should the Customary right of occupation be declared, for whom, and over what area of the land? With this back ground review of the matter we shall now proceed to examine the other grounds of appeal to see if they have been substantiated.

Ground 2 of Additional Grounds is that the Learned Chief Magistrate erred in law by reversing the judgment of the District Court on weight of evidence when there was not much on record to tilt the weight of evidence in favour of the respondents. This ground is similar to the omnibus ground being ground 1 of the original grounds which Appellants' Counsel argued extensively. Even Ground 3 of the Additional Grounds dealing with evidence of Traditional History given by appellant is closely linked up with the omnibus ground therefore three grounds:-

Omnibus ground, Ground 2 and 3 of additional grounds can safely be considered together. As I observed already above both communities claimed they each traditionally owned the land in dispute; both each say that they gave out a portion of the land to the other for farming upon requests made. Both of them talk of an agreement to share the land and give out a portion to the other, and both claim repudiation of the gentleman's agreement reached and both want the entire Land in dispute.

Evidence of traditional ownership of land:-

From the records of proceedings the plaintiff very ably traced their genealogy and showed how title to the land changed hands through many generations till it reached the plaintiff. The defendants gave no ancestral history of ownership whatsoever. At page 35 of the records under cross examination the Plaintiff asked the 1st Defendant how defendant's father owned the land. The answer was at line 32 that "He cleared the bush and made heaps." Thus defendant's father owned the land not by customary inheritance but by clearing and making heaps there. Obviously that was not convincing to any body, so the District Court accepted the traditional evidence of ownership given by plaintiff as proving Customary right to title, and rejected defendants' usage of the land alone as proof of title. Where land ownership is claimed in Customary Law the best evidence is that of traditional title proved by way of ancestral history of ownership. See the ratio in case of Ntoe Ekpo v. Eta Ita above quoted.

Where both sides claim ownership and both of them adduce evidence of ownership through ancestral history the better evidence of traditional ownership given by either side will warrant title being declared for that party:-See Karimu v. Fajube 1968 NMLR 151."

Learned judge then proceeded to set out the issues the parties relied upon for their claim to title to the land in question. Each side claimed they traditionally owned the land, with each side claiming giving the other portions of the land to farm upon; both claimed there was an agreement to settle amicably and share the land and give out portions to each other and both claimed repudiation of this agreement. He held that from the evidence before the District Court the plaintiffs traced traditional history to nine generations which the majority of that Court believed; and what the minority relied upon was long possession and erection of permanent buildings all within living memory i.e. thirty eight years. He relied on Karimu v. Fajube, (1968) NMLR.151. He held that the traditional history before the Trial Court should not have been disturbed by the Chief Magistrate.

It must be mentioned that the 3rd Defendant Chief Ewa Unah admitted liability right from the start of the case; the plaintiff also testified as to how one Eva Odoki family was still paying tribute just as 3rd Defendant was doing. According to learned appellate High Court judge, he could find no logic or reason in the Chief Magistrate setting aside the decision of the District Court on all the facts clearly before that Court and in the face of contradictions in the case for Defendants. He found that at the trial Court not only was the case of the plaintiffs strong but also the contradictions and weakness in the defendants' case gave force for them to have taken advantage of and relied on Akintola v. Oluwa, (1962) I All N.L.R., Pt.II 224 and distinguished it from the case of Agedegudu v. Ajenifuja (1963) 1 All NLR 187. He therefore set aside the judgment of the Chief Magistrate and restored the majority judgment of the District Court with some amendment to take cognisance of Land Use Act, and he set aside the order to quit granted by the District Court. Against this an appeal was lodged with the Court of Appeal, Enugu.

Of the seven grounds of appeal filed in Court of Appeal, only one was argued, and it is pertinent to set out the ground reading as follows:-

"The learned Judge of the High Court erred in law by not considering the effect or importance of Exhibit `C', a document executed by the parties and tendered in Court in settlement of suit 14/76 between the same parties over the same parcel of land which the defendant both in this Suit and in that case called IDO OBAH land or IDO OBA."

Thus, only the gentleman's agreement, Exhibit C, was argued by the parties in the Court of Appeal. It was the contention of the Counsel for the defendants as appellants in that Court that Exhibit C by its contents operated as an estoppel and that the plaintiffs could not go back on it in that the agreement once reduced to writing and executed by the parties was binding and relied on Kwasi v. Larbe, XIII WACA 76 and Olire v. Obodo, 3F .S.C. 84. The counsel for the appellants (now respondents) contended that the plea of res judicata would apply if one of the parties took out another action against the other side for title to the same land. The respondents' counsel before that Court adhered, it would appear, strictly to the submission he relied upon at the High Court arguing that since the appellants (now before this Court respondents) reneged on their obligation under Exhibit C and both parties regarded Exhibit C as no more binding that Exhibit C was no more relevant. This was, according to Court of Appeal, because the respondents who were appellants before them were alleged in the evidence before District Court to have agreed to release portion of their own land to the appellants, an obligation they failed to fulfil. The Court of Appeal, relying on S.131(1) Evidence Act, held that extrinsic evidence could not be admitted to prove what was not contained in Exhibit C. It was solely on this that the judgment of the High Court in its appellate jurisdiction was set aside

Against the decision of the Court of Appeal the Plaintiffs have appealed to this Court. I have set out the history of the case from the District Court (Customary Court) to this Court so as to show how the issues progressed. The appeal here is based mainly on the additional grounds which the appellants brief dealt with at length. It must be mentioned that Mr Mogboth, S.A.N. counsel for the respondent conceded he would not insist on res judicata but would only contest the issue estoppel. This no doubt was prompted by additional ground which states:

"The learned Justices of the Court of Appeal erred in law by treating either Exhibit B or C as res judicata or an estoppel."

(The particulars were given as to errors in Law.) The Exhibit B is part of the proceedings of the District Court of Bahumono in suit No. 14/76 between the present respondent and the appellants where the suit was adjourned so that the parties could explore the possibility of amicable settlement. Exhibit C is the settlement seemed to be agreed upon and it contains evidence of some agreement to fix boundaries by features on the land and planting of trees as demarcation points. The evidence before the District Court was to the effect that the respondents soon after the agreement and after the demarcation trees were planted uprooted them. Secondly, there was evidence from the respondents, as well as from the appellant consequent upon the respondents' behaviour, that Exhibit C was no longer regarded as building. Thirdly, there was clear evidence in the District Court that the parties agreed to Exhibit C after oral agreement that the respondents would give certain portions of their own land to the appellants for what they (respondents) gained in Exhibit C upon which the respondents reneged. S.131 (1) of Evidence Act reads inter alia

131. (1)     When any judgment of any Court ..., or any grant or other disposition of property has been reduced to the form of a document ... no evidence may be given of such judgment or grant or di

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