AKPUFU & ORS v. OBIPO & ORS (2018)

In The Court of Appeal of Nigeria

On Tuesday, the 6th day of February, 2018


Before Their Lordships

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria


(For themselves and as representatives of Descendants of Akpufu)
3. FESTUS ASEIMO Appellant(s)


4. CLEMENT ITORI Respondent(s)


CORDELIA IFEOMA JOMBO-OFO, J.C.A.(Delivering the Leading Judgment): This appeal emanated from the judgment of the High Court of Bayelsa State (hereinafter to be referred to as the lower/trial Court) presided over by Hon. Justice E. J. Okara in suit No. OHC/14/2011 and delivered 30th July, 2015.By way of a writ of summons and a subsequently amended statement of claim, the respondents who at the lower Court were the claimants made the following claims against the defendants who before us are the appellants:
(a) A declaration that the defendants are not entitled to trespass on the Owuru land-bush. The subject matter of this suit, with a view to appropriating it except the portion given to Akpufu by Iwolisi, prominent son of Akurein, the 1st son of Ogori, the founder of Otuogori Community.
(b) A declaration that the action of defendants in encroaching or trespassing on the Owuru Land, not given to the 1st and 2nd Defendants father Akpufu by the claimants through Chief Iwolisi, prominent son of Akurein, by surveying the land without the knowledge, authority, consent, leave, license, 
permission of the claimants, which surveying was not done in the interest of the Akurien family, or Iwolisi sub-family, is unlawful, wrongful and interference with the common use and general rights of the claimants, which action of the Defendants jointly and severally sound in damages.
(c) The sum of N4,000,000.00 (Four Million Naira only) damages for trespass in that on January, 2011, the defendants without the leave, consent, authority, permission or license of the claimants broke and entered the land of the claimants called Owuru land-bush and surveyed the land, which land is in peaceably possession of the claimants and which land is enjoyed and protected generally by the descendants of the Akurien, the claimants herein.
(d) A perpetual injunction restraining the 1st and 2nd defendants, by themselves, their agents, servants, privies, successors-in-title or any person(s) whomsoever and howsoever, acting, on behalf of the defendants generally or 1st and 2nd Defendants jointly or severally from parading themselves either jointly or severally laying claim or owner(s) of Akuriens Owuru land-bush or doing anything in the land exercising any act of ownership or 
possessory right whatsoever and howsoever or further recommitting acts of trespass on the land, the subject matter of this suit, except the bust of Owuru land-bush which Chief Iwolisi gave to his 1st and 2nd defendants through Akpufu by Iwolisi a prominent son of Akurien with the support of Akurien family.
(e) An order of perpetual injunction restraining the 3rd Defendant in particular from committing act of renegade by sabotaging the interest of the Iwolisi’s subfamily and that of Akurien larger family by collaborating, colluding, conniving and liaising with the 1st and 2nd Defendants or any person or group of persons whosoever, from laying claim to the claimants Owuru land or committing act of trespass or laying claim to the said land in consistent with the right of use, occupation by Iwolisi subfamily and or ownership and protection of Owuru land (bush) by the larger Akurien family, except such act of the 3rd defendant is in accordance with interest of the claimants as agreed by the claimants. 

(See pages 7  8 and 177  193 respectively of the record of appeal).
After hearing the evidence of the parties and availing himself with the legal addresses of the parties, the learned trial Judge in a considered judgment delivered 30th July, 2015, entered judgment in favour of the claimants/respondents while dismissing the counter claim of the defendants/appellants. (See pages 380  392 of the record of appeal).
Piqued by the development the appellants gave a notice of appeal at the lower Court on 30th October,


2015 against the said judgment. (See pages 393  397 of the record of appeal).
In compliance with the rules and practice of this Court, the parties filed and exchanged their respective briefs of argument. The appellants brief of argument dated 18th July, 2016, filed 22nd July, 2016 but deemed properly filed and served on 15th May, 2017 was settled by Aisha Egele, Esq. The respondents brief of argument dated and filed 8th September, 2016 and re-stamped 17th May, 2017 pursuant to the deeming order of the appellants brief on 15th May, 2017 was settled by J. U. Ugwu, Esq.
The appellants submitted the following 2 (two) issues and which 2 (two) issues were adopted and relied upon by the respondents in arguing for and against the appeal. The issues read:
i. Whether the lower Court was right in resolving the issue of possession in favour of the claimants. GROUND 1.
ii. Whether the lower Court properly evaluated the evidence placed before it before awarding the claims of the plaintiffs/respondents to the exclusion of the defendants/appellants. GROUNDS 3 and 4.

By not formulating any issue from ground 2 of the grounds and notice of appeal, the appellants are deemed to have abandoned same. Ground 2 (two) is thus struck out.
In making their submissions the appellants began by referring to paragraph 40 of the respondents statement of claim, paragraph 40 of the CW1’s witness deposition in support of the pleading and on the other part paragraph 19 of the appellants statement of defence and paragraphs 15 and 16 of the DW1’s witness deposition in support thereof and asked the following question to wit: whether there can be any ascription of liability, possession of land to any of the parties. The learned counsel for the appellants quickly gave an answer to the question in the negative submitting that there is no evidence as such from the parties neither did the Royal Highness of Otuokpoti and his council of chiefs adjudge same to any of the parties. He canvassed further that the fact that the claimants/respondents summoned the defendants/appellants to His Royal Highness of Otuokpoti for trespass cannot in fact and law ascribe possession to the respondents. See Akapo vs. Hakeem-Habeeb (1992) 6 NWLR (Pt. 247) 226, 291, Para. C and 303, Para C. Counsel argued that the lower Court erred in law when it ascribed acts of possession along the Dyke Alignment of the Resolpalm exclusively to the claimants family. He went on to say that the holding of the lower Court that the Isirima family members featured predominantly as persons who benefitted from the compensation as well as Exhibits J and K either in fact or law cannot be taken as possession by Akurein (the respondents) family. The learned counsel surmised that the holding by the lower Court in that respect was perverse. See Ogbu vs. Ani(1994) 7 NWLR Pt. 355, P. 128 at 152, Paras. G-H; Adelaja vs. Fanoiki (1990) 2 NWLR Pt. 131, P. 137, 156, Para. B.
Touching on the findings of the learned trial Judge as contained at pages 389 to 390 of the record of appeal, learned counsel submitted that they are not supported by the pleadings or evidence as led before the Court. He also contended that there was no mention of Ebiakpo creek at paragraph 20 (ii) of the appellants amended statement of defence which was not proved in evidence that would warrant the lower Court to hold that the absence or non-indication of Ebiakpo Creek led credence and strengthened the case of the claimants/respondents. Appellants submitted finally that such error committed by the lower Court is of such magnitude which substantially affects its decision and necessitates the reversal of the judgment arguing that the said finding did not depend on the credibility of witnesses and is not justice according to law.
Before I proceed with the resolution of the issues raised for determination of the appeal, I must not


fail to observe that the respondents brief has turned out to be of little or no use to me in the circumstances. The content of the said brief is apologetically incomprehensible and incoherent. As I often times warn, Lawyers by their calling must go the extra mile in preparation of their processes. They must learn to go through them over and over again for purposes of crossing their ts, dotting their is and most importantly correcting grammatical errors knowing that they are writing not just for themselves but for others to read, to comprehend and for posterity. The learned counsel for the respondents in the instant case simply failed to communicate as that his brief was prepared in a most haphazard manner.
I now proceed to resolve the issues.
In resolving the issues distilled for determination, I feel constrained to consider them in a reversed order which is to take issue 2 (two) in place of issue one and vice versa. The first issue will therefore read:
Whether the lower Court properly evaluated the evidence placed before it before awarding the claims of the plaintiffs/respondents to the exclusion of the defendants/appellants.
The subject matter of the dispute herein between the appellants and the respondents is the Owuru bush situate in the Otuogori community in Ogbia Local Government Area. It is now commonplace in the legal domain that ownership or possession of land may be ascertained in any or all of the following 5 modes:
a) By traditional history;
b) By document of title which is duly authenticated;
c) Act of selling, leasing, renting out all or part of the land or farming on it or on a portion thereof;
d) By act of long possession and enjoyment of the said land; and
e) 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.
See Idundun vs. Okumagba (1976) 10 SC. 227; Ihekoronye vs. Hart (2000) 15 NWLR Pt. 692 P. 840; Fasoro vs. Beyioku (1988) 2 NWLR Pt. 76 P. 263; Adole vs. Gwar (2008) 11 NWLR Pt. 1099 P. 562, 590; Ajukwara vs. Izuoji (2009) 10 NWLR Pt. 1148, P. 107; and Melifonwu vs. Egbuji (1982) 9 SC. 145, 162.
Being that they are the party upon whom the burden of proof laid, the respondents in various paragraphs of their amended statement of claim pleaded copiously facts of traditional history as well as the ceaseless acts of possession they have been exercising on the disputed Owuru bush. The respondents not only pleaded but also gave evidence on the fact that Ogori being the original founder of Otuogori community, in his lifetime begat Akurien, Iki and Ekpeweli. Upon Ogori apportioning his land to his children, they each enjoyed and exercised acts of ownership and effective possession of their portions. It is however in evidence that aside from their apportioned land, the descendants of Akurien of which the respondents belong to, also acquired the Owuru bush being the land in dispute through the act of cleansing and appeasement according to Ogbia native law and custom. Being that Ekpeweli refused to partake in the appeasement or contribute to the cleansing exercise, Akurien and Iki went ahead to perform the ritual after which they both shared the Owuru bush to the exclusion of Ekpeweli. The respondents pleaded and testified that the Owuru bush/land is demarcated by natural boundaries and features such as creeks, lakes and trees.
The appellants on their part and in their amended statement of defence particularly at paragraph 7 thereof averred that the Owuru bush was on the contrary one of the lands Ogori shared out to his 3 male


children namely Iki, Akurein and Ekpeweli. Appellants aver particularly at paragraph 10 thereof:
that upon sharing owuru bush amongst his three children that land later transformed to the three major families of Otuogori community, Iki family inherited the northern part of Owuru bush, Ekpeweli family [i.e. defendant’s family] took inheritance and possession of the middle part while Akurein (claimants) family inherited the southern part of the said owuru bush from their respective progenitors and ancestors.
The appellants claim to be beneficiaries of the Owuru bush by virtue of their descent of Ekpeweli family/compound who have been in quiet and peaceable possession of same.
In the face of the oral evidence as well as the exhibits tendered, the learned trial Court saw the need to make the following findings which to my mind is right. At page 388 of the record of appeal the learned trial Court had held thus:
I have also discovered that Exhibit H did not indicate the EBIAKPO Creek, as pleaded in paragraph 20 (ii) of the defendant’s Amended Statement of Defence. This in my view has also led credence and strengthened the case of the claimants. See page 388 of the record of appeal.
The learned Judge went further at pages 389  390 of the record of appeal to hold that:
I agree with learned claimant’s counsel that the said EXHIBITS A, B and C were induced because claimants were in possession of the disputed land. In EXHIBIT A, paragraph 4 it states thus, To our greatest surprise the following members of Akurien’s compound have given out some portion of the land of which the company has actually paid compensation to some persons from Otuokpoti Community for the cultivation of rice and plantain. This in my view is, an admission of act of possession by defendants. See NWOKOROBIA V. NWORGU Supra at 70 KP, Ratio 11. Exhibits E F and G are agreements with 3 other individuals not indigenes of Otuogori Community. The Agreements between Iki family of Otuogori Community to cut trees for planks in OWURU Bush in dispute. (See pages 389  390 of the record of appeal).
The learned trial Judge’s findings of facts as regards the documentary evidence to wit, Exhibits A, B, C, D, E, F and G are in my humble view unimpeachable. In the light of this the respondents rather than the appellants, gave a more probable and consistent evidence in establishing their claim of ownership and possessory right over the Owuru bush/land. Outside the portion or share of land given to the appellants through their descendant Akpufu, the said appellants obviously have placed no material on record to satisfy the Court that they have any share in the said Owuru bush in dispute. The question whether the lower Court properly evaluated the evidence placed before it before awarding the claims of the respondents to the exclusion of the appellants is in this vein answered in the affirmative. I am saying that the lower Court properly evaluated and analyzed the evidence before it. Issue 1 (one) is in consequence, resolved in favour of the respondents and against the appellants.
As to whether the lower Court was right in resolving the issue of possession in favour of the claimants/respondents, the answer is again in the affirmative given my findings under issue one. Issue 2 (two) is thus resolved in favour of the respondents and against the appellants.
Since the two issues raised in this appeal are determined in favour of the respondents and against the appellants, it follows that the appeal lacks merit consequent upon which it shall be dismissed and it is so dismissed. The reliefs awarded in favour of the respondents are in the circumstances affirmed, save for relief 3 which I deem necessary to vary given that the damages awarded therein by the learned trial Judge is in my view excessive. The orders of the Court are therefore as follows:


a) A declaration that the appellants are not entitled to trespass on the OWURU BUSH, the subject matter of this suit with a view to appropriating it, except the portion given to Akpufu by Iwolisi, a prominent son of Akurein, 1st son of Ogiri, the founder of the land.
b) A declaration that the action of the appellants on encroaching and surveying the Owuru Bush not given to the 1st and 2nd appellants by the respondents ancestor, Akurein without knowledge, consent or license jointly and severally amounts to damages against the appellants.
c) The sum of N500,000.00 (Five Hundred Thousand Naira) is awarded against the appellants as damages for trespass into the respondents Owuru Bush.
d) A perpetual injunction restraining the 1st and 2nd appellants by themselves, their agents, servants, privies or successor-in-title or any person whatsoever or acting on behalf of the appellants severally or jointly from laying claim or further committing acts of trespass in the said Owuru Bush, except the part given to Akpufu by Akurein.
e) Cost of N100,000.00 (One Hundred Thousand Naira) only as awarded by the lower Court.

The appeal is dismissed for lacking merit.
Parties to bear their respective costs of pursuing the appeal.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Cordelia Ifeoma Jombo-Ofo, J.C.A gave me the privilege of reading in advance the judgment just delivered. I agree with the reasoning and conclusion of my learned brother and I dismiss the appeal. I abide by the consequential order.


Aisha Egele, Esq. with him, Mathias Ebisintei, Esq. For Appellant


J.U. Ugwu, Esq. For Respondent

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