NYAVWARO & ORS. V. OGEGEDE (1971)

In The Supreme Court of Nigeria

On Friday, the 28th day of May, 1971

SC.60/1960

Before Their Lordships

IAN LEWIS Justice of The Supreme Court of Nigeria

UDO UDOMA Justice of The Supreme Court of Nigeria

ATANDA FATAYI-WILLIAMS Justice of The Supreme Court of Nigeria


Between

1. MITINI NYAVWARO
2. WEITABA EYERQKOKG
3. FRAWA GAGA
4. JAMES OJOMA  –Appellants

AND

BABIYA OGEGEDE  –Respondent

…………………….A…………………….

FATAYI-WILLIAMS, J.S.C. (Delivering the Judgment of the Court): In a judgment of this court in Suit No. S.C. 155/1964 delivered on 4th March, 1966 (admitted as Exhibit ‘B’ during the hearing of the present case), we observed that the Owhrode people, in consolidated suits instituted in 1955, obtained a declaration of title against the representatives of the Ejovbe people, and successfully resisted the claim of the representatives of the Iwreka people for a declaration of title, to a piece of land known as Okomu in Urhobo Division. The decision not only established that the Owhrode people were the owners of the said land, it also established that the Ejovbe and Iwerka people were lawfully in occupation of it as customary tenants.Later in Suit No.W/27/1963 (Exhibit ‘A’) the Owhrode people, in 1963, brought another action in the Warri High Court against their customary tenants (the Ejovbe people) for forfeiture of their rights as customary tenants on the land known as ‘Okomu’, recovery of possession, damages, and for injunction. Paragraphs 5 and 6 of their writ in that case read:
“5. Recovery of possession from the 1st defendant and the people of Ejovbe, that part of the land aforesaid known as ‘Okomu’ waterside which was granted to Chief Ogegede during his life-time by the plaintiffs.
6. An injunction restraining the 1st defendant and the people of Ejovbe, their servants and agents from carrying on canoe ferrying service across the Okomu River to Okpare from Okomu Waterside.”
The learned trial Judge dismissed both the claim for recovery of possession and for the injunction referred to above. As a matter of fact, all the Judge ordered, and that only in respect of the claim for forfeiture, was that the customary tenants should pay a ‘fine- of 50pounds in lieu of forfeiture; he non-suited their claim for damages. Being dissatisfied with that judgment, the plaintiffs that is, the Owhrode people appealed against that decision to this court. In the judgment of this court in that appeal,S.C. 155/1964 delivered on 4th March, 1966 (Exhibit ‘B’), the court observed that ” what the appellants were most concerned to secure was that the court should fix a suitable sum as tribute and direct that it should be the sum payable in future.” The court, after noting that the appellants had suggested 5pounds a year and that this appeared to be a reasonable amount to fix, ordered therein as follows:
“We vary the judgment of the trial Judge:
(i) By setting aside the order that the defendants shall pay a fine of 50pounds to the plaintiffs and substituting an order that the people of Ejovbe and Iwreka jointly and severally shall pay tribute at the rate of 5pounds a year to the people of Owhrode. with effect from the date of the judgment of the High Court, that is, the 6th December, 1963; and
(ii) By setting aside the order of non-suit in respect of the claim for damages and substituting an order dismissing the claim.”
In the present case, the plaintiff (now respondent), a grandson of one Ogegede and one of the people of Ejovbe, in the Magistrate’ Court at Ughelli in Suit No. MU/99/66, claimed against the defendants jointly and severally the sum of 100pounds as special and general damages for trespass to his (that is, the plaintiff’s) land at Ogegede Waterside In Ejovbe. The particulars of claim stated that on or about the 17th April, 1966 the defendants without the consent or permission of the plaintiff entered the said land which was in plaintiff’s lawful possession and disturbed his user thereon. He then claimed 10shillings for special damages and 99.10pounds as general damages. It is significant that this claim was commenced on 14th April, 1966, barely six weeks after the judgment of this court (Exhibit ‘B’) referred to above.
Briefly, the plaintiff’s case is this. He is one of the people of Ejovbe who had been declared in an earlier case to be the customary tenants of the Owhrode people in respect of a piece of land known as Okomu. Included in this piece of land is Ogegede Waterside where the plaintiff lives and which is the subject matter of the present case. As the customary tenants of the Owhrode people on the said Okomu land, the plaintiff and his people were also ordered to pay the Owhrode people an annual tribute of 5pounds. All the defendants are from Owhrode and are thus among the overlords of the plaintiffs people. Not only does the plaintiff live there, he also maintains the Ogegede Waterside which was founded by his grandfather named Ogegede. On the day of the alleged trespass, the defendants came on the plaintiff’s land at Ogegede Waterside and ferried passengers from there across the river to Okpare and from Okpare back to the Ogegede Waterside without the consent of the plaintiff. The plaintiff in the presence of one Idama Ogbodu of Edjovbe, tried unsuccessfully to stop the defendants from ferrying the passengers from his land on the waterside. Idama Ogbodu (1st P1./W.) described what happened on that day as follows:
‘One day, the day being Okpare Market day, I was going to Ogegede Water side to cross over to Okpare Market when on getting to the Waterside I met the plaintiff and the four defendants struggling. I enquired and the plaintiff told me the defendants brought their own canoe to ferry passengers across the river to Okpare and he refused hence the struggle. I saw the defendant as they carried passengers’ loads into their canoe and the plaintiff as he was struggling with them not to place the load into their canoe. The Waterside was founded by late Ogegede. Ogegede died long ago. At present the plaintiff lives there and maintains the Waterside. I know all the defendants before that day. Three of them are natives of Owhrode. while the fourth man is of Erievbiyor’…That day was the first time I ever saw the defendants ferrying passengers at Ogegede Waterside across to Okpare. I usually cross the river to Okpare on many occasions.’
Under cross-examination, Idama stated that the plaintiff was the oldest man in late Chief Ogegede’s family at the material time.
The 1st defendant denied ferrying anybody across the river as alleged by plaintiff. He admitted however that his people (the Owhrode people) and those of Edjovbe had a long standing dispute over Okomu land which included the Waterside now in dispute. The name of the Waterside, he also stated, is Okomu not Ogegede. In April, 1966, they received news that they had won the land case (Suit No.S.C.155/64) in the Supreme Court in Lagos. That same month, after they had received the news about the case, the second defendant was appointed by the Owhrode people to ferry passengers across the river to Okpare.
The 2nd defendant admitted ferrying the passengers from ‘Okomu Waterside on Owhrode land to Okpare Waterside’ on 7th April, 1966, the date of the alleged trespass. He claimed that Okomu Waterside belongs to the people of Owhrode. He admitted that the plaintiff lives there but denied that it was called Ogegede Waterside.
Both the 3rd and 4th defendants denied being on the Waterside on 7th April, 1966.
All the defendants admitted that they are natives of Owhrode. They also admitted that the plaintiff is a native of Edjovbe.
In his judgment the learned Magistrate found as follows:

…………………….B…………………….

‘From the evidence before me I found no difficulty in coming to the conclusion that the four defendants went to the said Ogegede (Okomu) Waterside on 7th April, 1966, and ferried passengers across the river to Okpare. I am convinced that it is not only the second defendant but all the four defendants went to the Waterside and ferried passengers. Whether they have the right to do so or not is a different matter.’
After observing, rightly in our view, that the rights of the parties in the present action had been determined in the judgment in Suit No.W/27/1963 (Exhibit ‘A’) to which we had referred earlier, the trial Magistrate then referred to the following finding of the trial Judge (which was not disturbed on appeal) in that judgment:
‘I do not believe the second plaintiff’s evidence that Ogegede operated the ferry at Okomu Waterside on the terms he said. I find as a fact that Ogegede operated the said ferry without let or hindrance and also not on sufferance from anyone and that he alone operated the said ferry. I do not believe that the said ferry place was known as Okomu Waterside nor that Owhrode Waterside was known by that name. I accept and believe the evidence of first defendant that the Watersides were known as Ogegede and Kpeshovbi Waterside respectively. For reasons of the views I have expressed and the findings I have made about the said Watersides plaintiffs must fail on the 5th and 6th claims in their writ.’
The learned trial Magistrate then gave judgment for the plaintiff for the amount claimed after finding finally as follows:
It will also be seen that the 5th and 6th claims in Exhibit ‘A’ showed that the people of Owhrode accepted that the people of Edjovbe are in possession of where they called Okomu Waterside and which the Judge found to be Ogegede Waterside, and that they also admitted that the canoe ferrying service at the waterside was being carried on there by the people of Edjovbe. In their action in suit No. W/27/1963, they tried to recover possession of the said Waterside and restrain the people of Edjovbe from carrying on the canoe ferrying service. They failed in both claims. How do the defendants now say that they had always been in possession and had always carried on the ferrying of passengers at Ogegede Waterside….

I therefore find that the plaintiff was in possession of Ogegede Waterside on 7th April, 1960, and that without his permission and consent the four defendants entered the Waterside and carried on the ferrying of passengers from the Waterside to Okpare. They collected fares from the passengers and prevented the plaintiff from carrying on the ferrying that day.’
On appeal to the High Court at Ughelli (Appeal No. U.H.C./3/A/67, Prest, J. observed, in effect, that the trial Magistrate had rightly found that the plaintiff/respondent was in undisputed possession of the Ogegede Waterside at the material time. He then dismissed the appeal after referring to a number of decisions and finding as follows:
it appears to me that the principles enunciated in these cases make it obvious that a customary tenant who is in possession and who has not committed any breach of his customary tenancy can maintain an action in trespass against his landlord who commits a breach of the customary grant, for example, by wrongfully going on the land in an attempt to dispossess the customary tenant of it as in the present case.’
On the issue of damages, the Judge agreed with the learned Magistrate that the case was one where exemplary damages should be awarded as a deterrent to others because it had become commonplace for successful litigants to deliberately misinterpret the judgments of the court and thereby provoke acts which were likely to cause a serious breach of the peace. He nevertheless reduced the quantum of the exemplary damages awarded by the trial Magistrate from 99: 10s to 25pounds.
Against this decision the defendant/appellants have now appealed to this Court. The only ground of appeal argued before us reads:-
‘The courts below erred in law in failing to observe that the plaintiff was not entitled to succeed because:
(a) he was not the head of the Ogegede Family;
(b) he did not sue on behalf of the Ogegede family; and
(c) there was no evidence that the Ogegede family were unwilling to bring action against the defendants for the alleged trespass.’

For the appellants, Chief Williams contended that since the plaintiff/respondent’s people (the people of Edjovbe) had been adjudged to be the customary tenants of the defendants/appellants people under customary law, the plaintiff/respondent, as a customary tenant could not sue his overlords for trespass in the absence of any customary law empowering him to bring such an action. He further submitted that even if such an action could be brought, the plaintiff/respondent, being a member of the community adjudged to be customary tenants, could not sue as he had done, in his personal capacity. The right to sue in such circumstances, Chief Williams then pointed out, belonged to the Ogegede family who were legally in possession of the Waterside, and no individual member of that family (including the plaintiff/respondent) who would be merely in occupation, could claim any right to possession of it separate from that of the family and of the Edjovbe community. He conceded, however, that if the Ogegede family or the Edjovbe community had sued, they might have succeeded.
Mr. Ideh for the plaintiff/respondent replied that once the trial Magistrate had found on the evidence before him that the plaintiff/respondent was in lawful possession of the Ogegede Waterside in dispute at the material time, he could bring the action for trespass. He further submitted that no member of the Edjovbe community who were the only persons who could have complained had ever questioned the right of the plaintiff/respondent to be in possession of the disputed Waterside. On the contrary they supported the claim of the plaintiff/respondent in all respects. Not being members of the Edjovbe community, learned counsel finally contended, the defendants/appellants were not competent to dispute either the plaintiff/respondent’s possession of the Waterside or his right to sue in respect of any trespass committed thereon.

For our part, we are not aware of any customary law, and Chief Williams was unable to refer us to any, which says that where a community, either by agreement or by order of court, become or are declared to be customary tenants in respect of any land subject to customary law, the individual customary tenant in that community cannot be in possession of any piece of land allocated to him out of the whole area in respect of which the whole community are customary tenants. Indeed, it sometimes happens that the members of the community of customary tenants do not all come from the same area;

…………………….C…………………….

they may not even be of the same ethnic origin. To hold, therefore, that each customary tenant who either lives on or cultivates his own small holding on the land which, in all probability, he has inherited from his ancestor (who was the original grantee) was merely in occupation and has no customary rights of possession, would leave such customary tenant with out any remedy if his rights are infringed and his community are either unwilling or incapable of protecting his interest. It is our view, therefore, that a customary tenant can be in possession and is usually in possession of the land which he occupies as such tenant. Furthermore, he can institute proceedings against any person (including all or any of the members of the family or community who are his overlords) who commits any act of trespass on his land. The decision of this court in Olayiwola v. Odejide S.C.671/1966 delivered on 13th June, 1969, on this point is particularly apposite. It reads:
“In the course of his judgment the learned trial Judge observed that the remedy for breach of the terms of a customary tenancy is an action for forfeiture of the interests of the tenant in the land or for recovery of the arrears of tribute. Learned counsel for the defendants/appellants has attacked this proposition of law but in our view without success. It may well be that in the way in which the proposition has been worded by the learned trial Judge the phrasing is imprecise, but we do not entertain any doubt that the effect of the authorities is that in every case of an infraction of customary law by a customary tenant steps are first taken to forfeit the customary rights of possession before any actual ouster or entry by the customary landlord. (See Lawani Buraimoh and Ors. v. Bamgboye and Ors. 15 N.LR. 139; Idowu Inasa v. Chief Oahodi 10 N.L.R. 4). For that reason, it seems to us, even on his own admission, that the 1st defendant/appellant had committed acts of trespass by putting the Umobos on the land to collect palm fruits. The learned trial Judge was therefore right in finding him liable for trespass.’
In view of the above, the learned Judge who heard the appeal was clearly not in error when he found that a customary tenant in possession can maintain an action in trespass against his overlord who commits a breach of the customary grant.
In the instant case, there is evidence which the learned trial Magistrate accepted, that the plaintiff/respondent was in possession of the Ogegede Waterside at the material time. It was also not disputed that he was the oldest man in the family of the late Chief Ogegede at that time. Moreover, in an earlier case (Suit No.W/27/1963 – Exhibit ‘A’, the defendants/appellants’ people, as shown in paragraph 5 of their Writ, claimed, albeit unsuccessfully, for recovery of possession of the 25 piece of land known as Okomu Waterside (which is the same as Ogegede Waterside now in dispute) which was granted to the late Chief Ogegede (the grandfather of the present plaintiff/respondent) during his lifetime by the defendants/appellants’ people. If Ogegede Waterside was granted by the defendants/appellants’ people to Chief Ogegede, and the plaintiff/respondent was not the oldest man in Chief Ogegede’s family but was also in possession of the Waterside at the time of the trespass, we are unable to discern any merit in the contention that he could not personally maintain an action for trespass committed on the said land. To our mind, the plaintiff/respondent is the person most competent to bring the action in these circumstances.
The appeal against the judgment of the Ughelli High Court in Appeal No.U.H.C./3/A/67 in respect of the claim for trespass therefore fails and it is dismissed.
Learned Counsel for the plaintiff/respondent, pursuant to a notice given under Order 7, rule 13(1) of the Supreme Court Rules, contended that the order of the learned Judge reducing the damages awarded from 99: 10pounds to 25pounds be set aside and the original award of the sum of 99: 10pounds be restored. His ground for this contention is that the learned Judge erred in law in interfering with the award of the original court after agreeing with the learned trial Magistrate that the case was one where exemplary damages should be awarded. In our view, there is force in this contention particularly as no reasons were given for the reduction. It is, indeed, difficult to resist the conclusion that the reduction was arbitrary. Having agreed with the trial Magistrate, rightly in our view, that it was a case for exemplary damages, he should not have interfered with the award. We therefore set aside the award of 25pounds made by him as exemplary damages and substitute the sum of 99:10poundss originally awarded by the trial Magistrate.Appeal dismissed.

Appearances

Chief Williams (with him Akisode and Dugbo)  –For Appellants

AND

Ideh (with him Chief Dafiagho)  – For Respondent

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