IDUNDUN v DANIEL OKUMAGBA
Delivered by Atanda Fatayi- Williams JSC
” After considering the arguments urged upon us in support of the submissions made on behalf of the appellants, we share the views of learned counsel for the respondents that the issues involved in the case were mainly issues of fact on which the learned trial judge made definite and specific findings. The law applicable to the facts as found is, of course, now well settled. We have closely examined the record of appeal ourselves in the light of the submissions made before us. We are satisfied that, except for the unnecessary reference, which is no more than an observation, to the 1951 Riots, and for the erroneous description of what is clearly a comparison of the pieces of land respectively shown in the two non-transparent survey plans (Ex. 38B and Ex. 2) as a “superimposition”, the various findings of fact made by the learned trial judge are amply supported by the evidence which he accepted.
With respect to the observation about the 1951 Riots, it is settled law that any wrongful admission of evidence shall not constitute a ground for reversing a decision unless the party complaining can show as well that without such evidence the decision complained of would have been otherwise. (See section 226(1) of the Evidence Act and the decision of this court in Ugbe & 4 ors. v. Edigbe & 2 ors. (unreported) but see SC.736/66 page 15, delivered on 27th February, 1970). It only remains for us to point out that in the case in hand, the appellants have not discharged this further burden. As for the second complaint, we do not see anything wrong in a judge looking at two survey plans tendered before him during the hearing of a case and comparing the boundaries and location of the land in one with those in the other. (See Latinwo v. Ajao (1973) 2 S.C. 99 at page 110, lines 4-25).
As for the law involved, we would like to point out that it is now settled that there are five ways in which ownership of land may be proved. We will now proceed to consider each of these five ways in order to see if the findings o£ the learned trial judge can be seen to bring the evidence adduced in the case in hand within the ambit of any of them.
Firstly, ownership of land may be proved by traditional evidence as has been done in the case in hand. In our view, not only was the evidence of the witnesses called by the appellants rightly rejected by the learned trial judge for good and sufficient reasons, we also think that he was right in not attaching any weigh to the views expressed in the books cited in support of such traditiona1 evidence. As Lionel Brett, J.S.C. (as he then was), rightly in our view, once pointed out in a learned address given by him at the University of Lagos to the Nigerian Association of Law Teachers:
“The courts are not to be hypnotised by the authority of print. The crucial fact is that a book cannot be cross-examined, either as to the opinion expressed, or as to the claims of the author to have special knowledge. If the author is living, there is no reason why he should not be tendered as an expert witness, when this difficulty would vanish.”
No evidence was adduced to show that any of these books is generally acknowledged either in Nigeria or elsewhere as a standard work or as appropriate authority on the relevant traditional history so as to enable the court to resort, with justification, to its aid. (See section 58 and 73(2) of the Evidence Act, Cap. 62 and Adedibu v. Adewoyin 13 WACA 191 at page 192). Moreover, none of the authors of these books testified in support of the views stated therein and no explanation was given for this omission. For all these reasons, we share the apprehensions of the learned trial judge about the value or weight of the traditional history as narrated by each of these authors, particularly as the authenticity and impartiality of the sources of their narratives cannot, for obvious reasons, be easily ascertained.
Secondly, ownership of land may be proved by production of documents of title which must, of course be duly authenticated in the sense that their due execution must be proved, un1ess they are produced from proper custody in circumstances giving rise to the presumption in favour of due execution in the case of documents twenty years old or more at the date of the contract (See section 129 of the Evidence Act and Johnson v. Lawanson (1971) 1 All N.L.R. p. 56). As the appellants’ case was not based on any document of title, this requirement, in the circumstances of this case, is not particularly apposite.
Thirdly, acts of the person (or persons) claiming the land such as selling, leasing or renting out all or part of the land, or farming on it or on a portion of it, are also evidence of ownership, provided the acts extend over a sufficient length of time and are numerous and positive enough as to warrant the inference that the person is the true owner (See Ekpo v. Ita 11 N.L.R. p. 68). It is clear from the judgement in the case in hand that the learned trial judge completely, and for good reason, rejected the evidence in support of the acts of’ ownership put forward by the appellants while he accepted those given by the respondents.
Fourthly, acts of long possession and enjoyment of the land may also be prima facie evidence of ownership of the particular piece or quantity of land with reference to which such acts are done (See section 45 of the Evidence Act, Cap. 62). Such acts of long possession in a claim of declaration of title (as distinct from a claim for trespass) are really a weapon more of defence than of offence; moreover under section 145 of the Evidence Act, while possession may raise a presumption of ownership, it does not do more and cannot stand when another proves a good title (See Da Costa v. Ikomi (1968) 1 All N.L.R. 394 at page 398). It cannot be gainsaid that, in the present case, not only did the learned trial judge reject the appellants’ evidence as to possession of any portion of the land in dispute, he also found that the respondents have proved by evidence, which he accepted, that they are the owners of the land in dispute.
Finally, proof of possession of connected or adjacent land, in circumstances rendering it probable that the owner of such connected or adjacent land would, in addition, be the owner of the land in dispute, may also rank as a means of proving ownership of the land in dispute. (See section 45 of the Evidence Act, Cap. 62). It must be remembered that the learned trial judge, after comparing the land shown on the survey plan No. OM3926 (Ex. 48B) with that on the survey plan No. WE2367 (Ex. 2) – a comparison which, as we have pointed out earlier, he erroneously described as a “superimposition” – found, with justification, that the land described as parcel “A” on Ex. 2 has been in the possession of the respondents, at least from 1960. He also found that members of the respondents’ family have always farmed in parcel “A”. We also recall that the trial judge also found that the respondents granted a lease of part of the land in parcel “B” of the land in dispute as shown in the survey plan (Ex. 2) to the Socio-Cultural Corporation and to other persons, that they effectively resisted the attempt of the said Corporation to extend their holding beyond the portion granted to them, and that they successfully sued the Corporation, Chief O. N. Rewane, its Chairman and Chief Begho, its Secretary, (as shown in the proceedings in Suit No. w/28/65 Exhibits 19, 19A and 19B) later for damages for acts of trespass committed by the Corporation on the portion unlawfully occupied by them; all these acts are clearly indicative of the fact that the respondents are also effectively in possession of that area described as parcel “B” in the survey plan of the land in dispute. Further more, the judge rejected the evidence of payment of tribute by the respondents to anybody, evidence which the appellants sought to use to justify the respondents’ possession of land outside the disputed land. In any case, as learned counsel for the respondents has rightly submitted, for the provisions of section 5 of the Evidence Act to apply, there must be an admission by the respondents, or a finding by the trial judge, that the land in dispute was surrounded by other lands belonging to the appellants. Not only was this fact not proved by the appellants, there was also no admission to that effect on the part of the respondents. Furthermore, as the learned trial judge could not, and did not, make any finding on this crucial point, the inference under section 45 of the Evidence Act that the appellants were the owners of the disputed land could not have been drawn. That being the case, we do not see how this particular section of the Evidence Act could have been of any assistance to the appellants.
On the whole, it is sufficient to say that most of the matters canvassed before us were examined meticulously and rejected by the learned trial judge for reasons upon which we cannot improve and to which we do not desire to add except, perhaps, to say that whether taken separately or together, none of the points urged upon us by learned counsel for the appellants would, in our view, justify any interference with the findings and decision of the learned trial judge. Consequently, we are of the view that the appeal has no merit and it is accordingly dismissed with costs assessed at N350.00.
Chief F. R. A. Williams
(Chief Obafemi. Awolowo, Dr. F. A. Ajayi, Messrs. O. N. Rewane, N. E. Akporiayo, S. A. Ajuya, S. E. Agambi, S. Edema-Sillo and E. Okonedo with him)
For the Plaintiffs/Appellants
Chief R. A. Fani-Kayode ( Femi Fani Kayode’s father)
(Dr. M. Odje, Messrs. A. O. Akpedeye and A. Orioye with him
For the Defendants/Respondents