In The Supreme Court of Nigeria
On Friday, the 14th day of July 2006
Before Their Lordships
Justice, Supreme Court
Justice, Supreme Court
Justice, Supreme Court
Justice, Supreme Court
Aloma Mariam Mukhtar
Justice, Supreme Court
Chief N.T. Okoko
(For himself and on behalf of Tarapa Family)
Judgement of the Court
Sylvester UmaruOnu. JS.C.
This appeal is against the judgment of the Court of Appeal, Port Harcourt Division presided over by Tabai, (as he then was). Judgment was entered for the Plaintiff, now Respondent in the High Court for declaration of title, damages for trespass and injunction on 28th August 1992. Being dissatisfied, the Defendant now Appellant, appealed to the Court of Appeal sitting at Port Harcourt before which he filed a total of seven grounds of appeal. In the judgment earlier delivered by the High Court, a lake within the land in dispute was awarded to the Defendant who did not counterclaim. On that basis, the Plaintiff filed a Cross - Appeal challenging that part of the judgment. Briefs of argument were later filed and exchanged including a Respondent's cross - appeal. In its considered judgment earlier referred to, the Court below allowed the appeal, set aside the decision of the High Court and dismissed the claim. The cross - appeal was also dismissed with costs assessed at
N5, 000 to the Appellants.
Statement Of Facts
The Appellant's claim in the High Court was for -
(i) a declaration for title to a piece of land known as Opubou Land near Obungha, Gbarain Clan Yanegoa Division;
N4,000.00 damages for trespass and
(iii) perpetual injunction
The case of the Appellant briefly stated, was that the land in dispute is situate at Obunagha (see paragraph 9 of the Re -Amended Statement of Claim); that Obunagha was founded by Obunagha after whom it was named vide paragraph 2 Re-amended Statement of Claim as per the evidence of PW1 who also traced the history of his descent from Obunagha to Tarapa, Umgbou, Olobiriowei, Ekpeku, Okoni to himself. The PW1 was the Plaintiff on record who died while the case was on appeal in the Court below.
PW1 further testified that as owners in possession members of his family farm on the land, fish in the ponds and lakes and carve canoe and collect firewood therefrom. They exercised these rights without interruption. These acts of possession and others were pleaded in paragraph II (vi) and (vii). Judgments of native Courts were also pleaded; two such judgments were tendered and admitted as Exhibits A and B (not copied) while the cases were between Olobiriowei of Appellants family against Agedai of Respondents family. One of the judgments over a lake withinthe land (Egwebara Lake) which was pleaded at paragraph II (v) was said to have been lost during the Nigerian Civil War. The PW1 said that it was in 1966 and 1967 that members of the Respondents family were seen carving canoe with kuru tree on the land and fishing in Egwebara Lake. They were warned but they did not stop. Boundary witnesses also testified for the Appellants. Their surveyor testified as PW5 and tendered their survey plan (Exhibit C), which is not copied. In all, five witnesses testified for the Appellants apart from the PW1. The PW3 under cross-examination said -It is the Gbarantoru people that fish on the Egerebara Lake. However, the PW1 had testified that the Egwebara Lake belonged to the Appellant. He said further that in the olden days, there were wild crocodiles in the lake. A member of the Respondent's family who had a medicine to scare away the crocodiles was called to scare them away and in return, was given the right to declare a day of general fishing. At the close of the case for the Appellant, the Defendant (Respondent) applied to further amend his Amended Statement of Defence. This was strenuously opposed albeit that it was eventually granted with the Respondent ultimately filing the further Amended Statement of Defence in which they set up an adverse claim to the land in dispute by averring through DW1 that the land was rather known as "Amaran Asa" as disclosed in the pleading in paragraph 2 of the further Amended Statement of Defence. In paragraph 3, the Respondent did not specifically deny paragraphs 3 to 7 of the Appellant's pleading. They pleaded inter alia............ "the Defendants are in no position to admit or denythe averments contained in these paragraphs........." It was theevidence of the Respondents that "Amaran was founder of the land in dispute." But this was not pleaded. Also not pleaded was the link between Amaran and Ayainbiri and between Ayainbiri and the DW1, the Defendant on record.
It is also the case of the Respondents that their ancestors originally settled in a place within the land in dispute. Near the old settlement is the Big Shrine of Agburuku as pleaded in paragraph 7(f) of their pleadings. DW1 further testified that the juju shrine belonged to the Respondent and still exists, concluding that the position of the Agburuku Shrine had never shifted.
The Respondents' Surveyor testified as DW4 and agreed under cross-examination that the land of Chief PataniKemidise is the land having boundary in the North with the land verged yellow which is the "Opubou bush." DW2, Respondents' boundary witness who said he is from Tunama family of Obunagha, later said under cross-examination that he is also from the Appellants' family. He testified, strengthening Appellants' case, that "the founder of Obunagha was Obunagha." Tunama family is the family of Chief PataniKemidise. But DW2 contradicted both the pleadings in paragraph 5(a) of the further Amended Statement of Defence and the evidence of DW4, the Surveyor. Whereas the DW4 who tendered the Respondents' Survey Plan (Exhibit "G") said, "the northern boundary in Exhibit "G" is the Opubou bush". DW2 who said he was a retired Senior Registrar of the Judiciary, contradicted the evidence of DW4 and the Respondents' pleadings by saying "I do not know the Opubou bush......ourland is bounded..........on the South by the Ayainbiri family of Gbarantoru the descendant's - we do not share a boundary with the Plaintiffs."
DW3 who was also called by the Respondents as a boundary witness further contradicted the case of the Respondents when he said: "The land in which Gbarantoru settles, -is owned by Kalaigoni family" contrary to paragraph 6(ii) of the Further Amended Statement of Defence.
It is the further case of the Respondents that they "have been occupying it and making use of it by farming and cutting timbers therefrom." The DW1 agreed under cross-examination that they have been making money from the lakes and ponds. The Respondents tendered native Court judgments vide Exhibits "D", "E" and "F". While Exhibit E was in respect of the Egwebara Lake, these Exhibits were shown to have been tampered with,having been painted with tipex in some parts. The evidence of both parties was thoroughly evaluated by the learned trial Judge before he made his findings except that part concerning the Egwebara Lake and Exhibit "E" in respect of which a cross -appeal was filed.
The Court below upset the findings of the learned trial Judge and dismissed the claim, upheld the Appeal and dismissed the Cross -Appeal, hence this Appeal premised on the four grounds contained in the original Notice and Grounds as well as an additional ground of appeal in reply to the Respondents' Statement of Defence. The Appellants then filed a Reply and with it, issues were joined.
The parties filed and mutually exchanged briefs of arguments. While for the Appellant four issues were formulated as arising for determination, for the Respondent three issues were submitted as arising, for determination. The four issues proffered by the Appellant are:
Issue No 1
Was it proper in law for the Court below to rely on evidence of traditional history given by the Respondent on facts not pleaded in the Further Amended Statement of Defence and in the absence of such evidence, would the Court below be right in holding that the evidence of both parties was on the balance and ought to have been subjected to the Rule in Kojo II v Bonsie (1957) 1 WLR 1223?
Issue No 2
Was the Court below right in upsetting the findings of the trialCourt on the basis of failure to apply the Rule in Kojo v. Bonsie(supra), without taking into consideration the credibility of theRespondent's evidence of traditional history acts of recentpossession?
Issue No 3
Whether the Court below was right in its application of theprovisions of Sections 46 and 146 of the Evidence Act, 1990, as a basis for setting aside the award of damages and injunction when the Appellant had proved title through traditional history.
Issue No 4
Did the decision by the Court below on the main appeal resolvethe issues in the cross - appeal? If not was the Court below rightin dismissing the Cross - Appeal without a determination of theissues therefrom?
The Respondents disagreed with the issues proffered by theAppellants. In their opinion, and based on the grounds of appealfiled by the Appellants, the following issues arise fordetermination in this appeal.
Whether the Court of Appeal was right in holding that thetraditional evidence given by the parties was on the balance andought to have been subjected to the test laid down in Kojo II v Bonsie (1957) 1 WLR 1223 (Grounds 1, 2 and 3 of the groundsof appeal).
Whether the Court of Appeal was right in applying the provisionsof Section 146 of the Evidence Act and to have set aside theaward of damages and injunction (grounds 4 and 5 of the groundsof appeal).
Whether the Court of Appeal dealt with the issues raised in the cross - appeal in the main appeal as to justify the dismissal of the cross - appeal (ground 6 of the grounds of appeal).
After a careful consideration of the issues hereinbefore submitted on either side, I prefer and wish to adopt the Appellants' issues in resolving the appeal as follows:
Argument (Issue No l).
In the first place, the question one may ask is, was it proper in law for the Court below to rely on evidence of traditional history given by the Respondent on facts not pleaded in the Further Amended Statement of Defence and in the absence of such evidence, would the Court below be right in holding that the evidence of both parties was on the balance and ought to have been subjected to the Rule in Kojo v. Bonsie (1957) 1 WLR 1223? (This issue is covered by Grounds 1 and 2 of the Grounds of Appeal).
In its judgment, the Court below quoted from the evidence of DW1 as to who founded the land in dispute the following extract: "On the other hand, Earnest Mark Ejebu (DW1) testifying to Appellant's root of title in line with their pleading stated at page 128 lines 25-27 of the Record as follows:
"The said land is called Amara-Asa. The defendants' Anyaibiri family own the said Amara-Asa".
Testifying further at page 129, line 24 to 27 of the record, he stated: -
Amaran was the founder of the land in dispute. Amaran was the grandson of Gbarantoruowei. Amaran had other lands apart from the one in dispute.
Part of the DW1 testimony at page 130 lines 12 to 16 of the Record read: -
"Once the land was founded by Amaran we have been occupying it and making use of it by farming and cutting timbers therefrom. After Amaran, the land deluded (sic) on Agedai."
After listing the names from Obunagha the founder, to Olobiriowei and his son, Ekpeku, the learned trial Judge cited the relevant paragraphs of the plaintiffs' pleading and concluded that
"Although the evidence is short, it does not, in my assessment, leave area that call (sic) for further explanations."
Thereafter, the learned trial Judge shifted his focus on the defendants' evidence of traditional history and remarked thus:
"for the defence however, the evidence of traditional history seems to leave some gaps that make it incomplete."
The unpleaded facts of the traditional history of the defence were then highlighted with the conclusion that
"If the evidence about Ayainbiriowei is discountenanced, it leaves a gap in the traditional history of the defendant's line of succession."
It is obvious that the Court failed to consider the effect of these gaps on the evidence of traditional history offered by the defence. When the Court below concluded that the learned trial Judge went on to speculate on what ought to be the history of the root of title of the appellants ............."And that the learned trial Judge ..............ought to confine himself to the history as pleaded, they did so (with due respect to the learned Justices of the Court below) without considering the earlier findings of the learned trial Judge as regards the missing links in the evidence of the defendants. The conclusion of the learned trial Judge concerning the defendants' evidence on the unpleaded facts is that the facts were "vital" and "material" and "ought to have been pleaded." The learned trial Judge then stated that principle of law that
"......... evidence in support of facts not pleaded goes to no issue and ought to be discountenanced."
The question then is, was the Court below right in relying on the evidence based on unpleaded facts as highlighted above, or putting it differently, was the learned trial Judge wrong in his finding and conclusion regarding the state of the defendants' pleading and evidence?
The answer to be proffered, in my opinion, is that the Court below was wrong when it relied on the evidence on the facts not pleaded in the further Amended Statement of Defence. I am also of the view that the decision of the learned trial Judge cannot be faulted. It was correct, in law for the learned trial Judge to hold that the defendants' evidence on the unpleaded facts ought to be discountenanced as it is inadmissible. In Eze& 6 others v. Atasie& 3 others (2000) FWLR (Pt.13) 2180 at page 2189, it was stated emphatically thus:
"If the evidence is at variance with the pleading, such evidence will have no value. It will be discountenanced because it is contrary to the issues joined and, therefore goes to no issue worthy of consideration.
" At page 2193, paragraphs E - F, Katsina-Alu, JSC put itsuccinctly thus:
"So, a party relying on evidence of traditional history must plead his root of title. Not only that he must show in his pleading who those ancestors of his were and how they came to own and possess the land and eventually passed it (sic) him."
And at page 2195 paragraphs B - C, Ejiwunmi, JSC put itclearly, as follows:
"It must be remembered that once pleadings are ordered, filed and exchanged, the parties and the Courts are bound by the pleadings so filed, it therefore follows remorsely that evidence must be led in accordance with the pleadings. Evidence led not in conformity with the pleadings and/or upon facts not pleaded went to no issue."
(Underlining is for emphasis).
The principle of law is the same whether the pleadings and evidence are those of the plaintiff or the defendants. There is a plethora of decided cases on this issue but it will not be out of place to call in aid especially on Akinloye V. Eyiyola
(1968) NMLR 92 in which Coker, JSC at page 95 thereof held as follows:
"The defendants did not plead the names or histories of the several ancestors mentioned by them or on their behalf in evidence. Such evidence should not have been allowed without an amendment of the pleadings."
That decision was cited and followed in Alli V. Alesinloye (2000) FWLR (PART 15) 2610 at page 2653 paragraphs D - H. See also Obulorv Oboro (2001) 4 S.C (PART 1) 77 at page 79 - 80.
Realising these gaps and missing links in their case, they sought to amend the Further Amended Statement of Defence in the Court below by a motion filed on 11th April, 1995 to introduce some of the facts that were not pleaded. Prayer 2 containing the amendment was withdrawn by the Defendants' Counsel and consequently struck out.
The next question is, if the evidence of the Defendant as regards the unpleaded facts that Gbarantoruowei had two sons, Anyairiowei and Obabiriowei and Amaran, the son of Anyabiriowei, founded the land in dispute, is expunged from the records, would it be right to hold (as the Court below did) that the evidence of both parties was on the balance and ought to have beensubjected to the test laid down in Kojo II v. Bonsie (1957) 1 WLR 1223?
With due respect to the learned Justices of the Court below, it was a wrong decision to hold that the evidence of both parties was on the balance and ought to have been subjected to the rule in Kojo II v. Bonsie(supra). Simply put, the Rule is to the effect that
"where there is conflict of traditional history, the best way to test the traditional history is by reference to facts in recent years as established by evidence and by seeing which of the two competing histories is more probable."
per Lord Denning at page 1226.
Thus, for the rule to apply, there must be evidence of traditional history from both parties which are in conflict, one with the other, such that the Court cannot justifiably prefer one to the other. This was "the" decision in Eze& 6 Others v Atasie& 3 Others (supra) at 2190 paragraphs D - E. The contention there is that as material parts of the evidence of traditional evidence of traditional history put forward by the Defendants were not pleaded, the evidence of both parties cannot be said to be in conflict so as to necessitate the application of the rule. It is for the above reasons that I agree with the Appellants that Issue 1 be and is hereby resolved in their favour.
On Issue No 2
Issue No.2 asks whether the Court below was right in upsetting the findings of the trial Court on the basis of failure to apply the rule in Kojo II v. Bonsie(supra), without taking into consideration the credibility of the Respondent's evidence of traditional history and acts of recent possession.
The learned trial Judge found that
"For the plaintiff, the evidence of traditional history is quite consistent with the facts pleaded."
All the names in the line of descent ......... were pleaded..........." Forthe plaintiffs' evidence, the learned trial Judge continued in his assessment that "Although the evidence is short, it does not, in my assessment, leave areas that call for further explanations. As against that, for the defence, the learned trial Judge found some "gaps" that made it incomplete.
After noting the material facts that were not pleaded, the learned trial Judge brought out the areas in the evidence for the defence that robbed it of its probative value. He summarised the defence case and noted that "it is rather curious that the land in dispute was neither founded by Ekpeti, by Gbarantoruowei nor by Ayanbiriowei. "He continued that "....Thisevidence also renders the traditional history of the defence suspect. With respect, it was the assessment of the evidence of both parties that the learned Justices of the Court below erroneously regarded as speculation "on what ought to be the history." Further still, it was also erroneous for them to observe that "the learned trialJudge ......... ought to confine himself to the history as pleaded."
The record shows that the learned trial Judge perfectly understood the history given by both parties. He gave a vivid summary of the evidence of traditional history by both parties before expressing his preference for the plaintiffs claim as to why the plaintiffs were the earlier settlers. Yet, the learned Justices of the Court below condemned the judgment, rather wrongly, in the following words:
" ......... the learned trial Judge had departed all wellknown principles and decided cases of superior Courtsand adopted a rather inappropriate method to test thecompeting versions of traditional history or evidence toascertain which was more probable than the other."
What indeed the learned trial Judge did was to show that beforeAmaran, who the Defendant claimed to be their ancestor, Gbarain,the founder of Gbarain Clan, settled in the area of Gbarain Clan,Ekpeti, the founder of Ekpetiama Clan and Gbarantoru Village hadbeen founded by Gbarantoruowei. Yet Amaran wasGbarantoruowei's grandson. That was why the learned trial Judgetermed it as "curious that the land in dispute was neither foundedby Ekpeti nor by Gbarantoruowei nor by Ayanbinowei." When thelearned trial Judge wrote that
"there is no explanation why the landin dispute which is contiguous to the land on which Gbarantoruvillage is situated was not founded by the earlier settlers in thedefendant's line of descent until comparatively much later time of Amaran",
he was not, with due respect, supplying a different history to the defendants as the learned Justices of the Court below wrongly concluded.
Obviously, and as I have come to agree, it was not credible evidence to say that after Gbarain had founded Gbarain clan, Ekpeti had founded Ekpetiama and Gbarantoruowei had founded Gbaratoru village, Amaran, the grandson of Gbarantoruowei, could still have founded the land in dispute, which is contiguous to Gbarantoru village and which is said to be in Ekpetiama clan where Amaran was said to "own" various land, including the land in dispute. See paragraph 6(iii) of the Further Amended Statement of Defence. Comparing the pleadings in paragraph 6(ii) and 6(iii) of the Further Amended Statement of Defence and the evidence thereon, it is clear that the history of the Defence is inconsistent. Ekpeti had founded Ekpetiama clan including the land in dispute.
Furthermore, after testifying that Gbarantoru village was founded by Gbarabtoruowei, the DW1 contradicted himself on the traditional history when he said as follows:
"We showed the surveyor the area called Gbarantoru village. The area we live was verged in our plan. It is not true that the said area we occupy was granted to us by the plaintiffs ancestors. But it belongs to the Kala Igoni Family of Gbarantoru village. Even when we want to build a house, we obtain permission from them."
(Underlining is mine for emphasis).
With such contradiction the evidence of the Defendants on the traditional history was so manifestly discredited that no reasonable tribunal can rely on it. That was what the learned trial Judge was clearly saying which was misconstrued by the learned Justice of the Court below as departure from all well known principles and decided cases of superior Courts.
In assessing the credibility "of the evidence of traditional history and facts of recent possession given by the defence," thelearned trial Judge gave areas" which tend to undermine its probative value." He now assessed the evidence of the defence as pleaded in paragraph 7(a) and (b) of the Amended Statement of Defence (sic) concerning Toloke, a daughter of Amaran, who got married to Isere of Obunugha.
The defence evidence was that Amaran gave Toloke a portion of land to farm. Members of Plaintiffs family who are relations of Toloke's children joined Toloke to farm on the land given to her by Amaran. That land which was part of the land in dispute did not revert back to the defendants. The learned trial Judge found that this evidence supported the claim of the Plaintiffs that they were in possession of the land in dispute, adding that the area was not shown to the trialCourt. This aspect of the evidence was not considered by the Court below.
Also not considered is yet another aspect of the evidence of the defence concerning their acts of recent possession where DW4 (the surveyor) contradicted DWI (the Defendant on record).
In paragraph 7(f) of the Further Amended Statement of Defence the Defendants pleaded as follows:
"The ancestors of the 1st and 2nd Defendants originally settled in a place within the land in dispute. The place is shown on the plan. "Near this old settlement is the big shrine of Agburuku."
In evidence the DWI said the juju belonged to Amaran and the shrine is located on the land in dispute and it still exists ................... He said further that the shrine was represented by a basket of feathers, a big chain, a glass, a bottle and a saucer. He testified also that 20 members of the defendants' family went with the surveyor when he surveyed the land in dispute.
His evidence was contradicted in two material areas: i) the DW4 (the surveyor) testified contradicting him (PW1) that what was shown to him as representing the Agburuku shrine was "a big cotton tree" and same was indicated on the survey plan he produced (EXHIBIT "G").
As to the first area of contradiction, the learned trial Judge decided by stating:
"I agree with the contention of the plaintiffs Counsel that there is an inconsistency here."
The old settlement where the defendants' family lived which was said to be closed to the Agburuku shrine was also shown in the survey plan Exhibit "G". But contrary to the evidence of the DW1, the so-called old settlement is very far from the Agburuku shrine. To this the learned trial Judge remarked:
"Therefore it cannot be said in any conceivable sense that the old settlement and the Agburuku juju shrine are in one and the same place or close to each other as alleged in paragraph 7(f) of the Statement of Defence."
In my view, this further erodes the potency of the evidence of traditional history of the defence.
I am of the firm view therefore that with such contradiction and inconsistency in the evidence of the defence the learned trial Judge was right to reject the traditional history relied on by the defence and was right to refuse to apply the rule in Kojo II v Bonsie(supra). He was in my opinion equally right to have decided that "the plaintiffs' evidence of traditional history appears........to bestronger than that of the defendants."
See Obioha v Duru(1994) 8 NWLR (Pt.365) 631 at 641 paragraphs B - F where Ogundare, JSC made the following emphatic pronouncement:
"This is the approach to resolution of conflict in traditional histories as enunciated in Kojo v. Bonsie (1957) WLR 1223, traditional histories applicable where both histories are plausible and capable of creditability. Where, however, the traditional histories put out by one of the parties is so intrinsically conflicting that a reasonable tribunal would not place credence on it, there is no room for the application of the approach. Thus, where witnesses of one party, as the witnesses for the defence in the instant case, contradict each other on the traditional history relied on for the defence, the trial Court will be right to reject the traditional history relied on by the defence. Similarly where there are evidence adduced by one side supportive of the traditional history relied on by the other side, the trial Court will be right in accepting the latter traditional history."
The decision in Obioha v Duru (supra) was followed recently in Biariko v Edeh-Ogwuile (2001) 4 SC (pt.11) 96 at pages 114-115 lines 20-28.
From the foregoing, I agree with the Appellant's submission that the learned Justices of the Court below were wrong in law when they held that "the learned- trial Judge was in error inresorting to the "comparisons" to determine which of the competing histories was more probable in order (sic) (to) declare title to the land in dispute in the respondents." In fact, it has been held in Biariko v Edeh-Ogwuile(supra) at page 114 lines 20 - 39 that:
"It is not the law that once there are conflicts in thetraditional histories adduced, the Court must promptlydeclare them inconclusive and thereupon proceed toconsider recent acts. What indeed happens is that thecase being one fought on hearsay upon hearsay, the trialCourt has a duty to find which of the two histories ismore probable by testing it against other evidence in thecase. It is when it can neither find any of the twohistories probable nor conclusive that he will declareboth inconclusive and proceed to decided the case onthe basis of numerous and positive acts of possessi