⦿ CASE SUMMARY OF:
Newman Olodo & Ors. v. Chief Burton M. Josiah & Ors (2010) – SC
⦿ LITE HOLDING
Family land alloted to a person for farming or use cannot be sold without the consent of the family by that person.
⦿AREA OF LAW
– Customary Law
– Family land.
1. NEWMAN OLODO
2. WISDOM NEWMAN
3. GERSHOM NEWMAN
4. GRANVILLE NEWMAN
5. ONUMEYE NEWMAN
6. GODWILL NEWMAN
7. OKPEYA NEWMAN
8. OTAVIE NEWMAN
9. LUCKY NEWMAN
10. DOGOOD NEWMAN
11. CHUKWU NEWMAN (For themselves and representing Tombo Family/unit of Izifa compound, Akenfa-Epie Yenagoa Local Government Area.)
1. CHIEF BURTON M. JOSIAH
2. CHIEF SYLVANUS AKPALO
3. MR.OKPOTO LYON
4. MR. AKIDA MAXWELL
5. MR. KWOTE NATHAN
6. MR. PIUS NATHAN
7. HELPME OGO
8. GODFREY OGO
9. PRINCE YAZI OKPOSO
10. TUGWELL ALBERT
11. SHEDUER ABAS
12. CROWDER JOHNSON (For themselves and representing Izifa Compound of Akenfa)
⦿ LEAD JUDGEMENT DELIVERED BY:
A. FABIYI, J.S.C.
* FOR THE APPELLANT
– H. Igbikibenesima.
* FOR THE RESPONDENT
– I. Evans.
⦿ FACT (as relating to the issues)
The respondents herein, were the plaintiffs in suit No.YCC/63/95 at the Customary Court, Onopa- Yenagoa filed by them in representative capacity.
In their ‘Amended Claim‘, they claimed against the defendants/appellants herein in a representative capacity i.e. for themselves and as representing Tombo family Unit of Izifa Compound, Ahenfa Epie, yelga, as follows:- “A. A declaration that the plaintiffs (Izifa Compound) are vested with Customary Right of Occupancy over and covering the piece or parcel of land known and Called Azigene bush situate in Akenfa Epie, Yelga. B. A declaration that the defendants who are descendants of one of Izifa’s daughters are not vested with an exclusive right or better right of ownership (title) than the plaintiffs over the land known and called Azigene bush situate in Akenfa Epie, Yelga. C. An order of perpetual injunction restraining the defendants by themselves, their agents, assigns, servants or successors-in-title from exercising further acts of trespass or exclusive right over the said Azigene bush.”
The appellants, as plaintiffs in Suit No.YCC/64/95 (for themselves and as representing Tombo family Unit, Akenfa-Epie, Yelga) also claimed as follows:- “A. Declaration that the plaintiffs are vested with an exclusively Customary Right of Occupancy over and covering the piece or parcel of land known and called OKPUZA LAND and the creeks therein situate in Azigene Bush Akenfa, Epie. B. An order of perpetual injunction restraining the defendants by themselves, their successors-in-title, agents servants, assigns or privies from further acts of trespass.”
On 23rd November, 1995, the trial Customary Court ordered the consolidation of the two suits for purpose of hearing. Each party adduced evidence and called witnesses.
In its judgment delivered on 25/6/96, the trial Customary Court found in favour of the defendants and pronounced at page 70 of the Record as follows:- “Having carefully considered the evidence before us, we hereby give the following judgment – 1. That the portion or piece of land called Azigene (excluding Okpuza land and creeks) belong to the people of Izifa family of Akenfa town. Accordingly, the Customary Right of Occupancy over the said Azigene land excluding (Okpuza lands and creeks) is hereby awarded to the plaintiffs. 2. The land known and called Okpuza land that is – the portions or parcels of land surrounding the four Okpuza creeks including Ozinkoye and Olodo fishing channels which the defendants inherited from their own grand father belongs exclusively to the defendants. In this regard, the Customary Rights of Occupancy over the lands surrounding the said Okpuza creeks including Ozinkoye and Olodo fishing channels is hereby awarded to defendants. 3. Both parties are hereby ordered to restrict their farming and fishing activities to their respective portions only.”
The plaintiffs felt unhappy with the stance posed by the trial Customary Court and appealed to the High Court of Appeal. Thereat, Ungbuku, CJ on 21st October, 1999 upturned the judgment of the trial Customary Court. The reason given by the learned Chief Judge was that the trial Customary Court failed to properly evaluate the evidence before it and thereby caused a miscarriage of justice.
The defendants who were not pleased with the judgment appealed to the Court of Appeal which heard the appeal. In its own judgment handed down on 5th June, 2002, the judgment of the learned Chief Judge was affirmed.
The defendants have, ex debito justitiae, appealed to this court.
1. Whether the re-evaluation of the evidence on record embarked upon by the High Court on appeal resulting in setting aside the decision of the trial Customary Court which was affirmed by the Court of Appeal, is in order having regard to the circumstances of the case.
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: DISMISSED WITH N50,000]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. At pages 115-176 of the Record, the court below pronounced as follows in respect of Exhibit ‘A’- “The above apart, there was evidence that the Azigene land is the subject matter of suit No. YHC/3/86 (see Exhibit A) – The suit is pending. There was evidence that the Izifa family was sued in a representative capacity. There was evidence that Chief Sylvanus Akpalo with Mr. Gershom Newman and two others are the representative of the Izifa family in the suit. There was evidence that the Izifa family made a survey plan of the Azigene land or bush inclusive of the Okpuza land now being claimed by the appellants. A natural question to ask is this: why did the appellants not file their separate Statement of Defence, make their survey plan to defend their own land — It is my view that had the trial Customary Court properly evaluated the evidence before it, it certainly would have reached a decision different from its judgment.”
I perfectly agree with the above.
A joint defence culminating in the filing of Exhibit ‘A’ wherein the appellants did not file their own separate survey plan of their desired Okpuza land does not advance their case to any considerable length – It is clear to me that if the trial Customary Court had appropriately appraised the totality of the evidence adduced before it and placed same on an imaginary scale as propounded by Fatai-Williams, JSC, (as he then was) in Mogaji v. Odofin (supra) at page 93 and further stressed by Eso, JSC in Bello v. Eweha (supra) it should have found that the evidence of the respondents far outweighed that of the appellants. Their attempt at embarking upon ‘secession’ from Izifa Compound where they belong as the fifth (5th) family got crushed through the employment of due judicial process. I cannot see my way clear in tampering with the balanced judgment of the court below.
ii. I wholly agree with the High Court’s finding that the appellants who are urging the contrary to the settled presumption have defaulted in discharging the onus of proof on them based on the principle established in Tijani’s case (supra) as I have stated above. That is to say, proving their exclusive ownership of Okpuzu land.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
It is settled that ascription of probative value to the evidence of witnesses is pre-eminently the business of the trial court which saw and heard the witnesses. An appeal court will not lightly interfere with same unless for compelling reasons. – A. FABIYI, J.S.C. Olodo v. Burton (2010)
An appellate court should not ordinarily substitute its own views of fact for those of the trial court. An appellate court will not interfere with findings of fact except where wrongly applied to the circumstance of the case or conclusion reached was perverse or wrong. – A. FABIYI, J.S.C. Olodo v. Burton (2010)
The law is firmly established that where a court of trial fails to make findings on material and important issues of fact by brushing them aside or approaches the evidence called by the parties wrongly, the appellate court will have no alternative than to act accordingly as the circumstance dictates. – A. FABIYI, J.S.C. Olodo v. Burton (2010)
It is incumbent on a party who asserts the existence of a fact to prove same. – A. FABIYI, J.S.C. Olodo v. Burton (2010)
It is the business of the trial court to put evidence with probative value as adduced by both sides on an imaginary scale to ascertain who has the upper hand. – A. FABIYI, J.S.C. Olodo v. Burton (2010)
Where as in this case for a claim for a declaration of title, the appellants and their witnesses gave conflicting history of the appellant’s root of title, such root would be treated as unreliable. – A. FABIYI, J.S.C. Olodo v. Burton (2010)
Where the land in dispute is deemed to be a communal property – the onus is on the party who asserts that the communal property belongs to him to show how exclusive ownership devolved on him. A party, who claims exclusive title to communal or family land against the entire family or community, must cogently prove that there had been a partition of the land claimed. – Adekeye, J.S.C. Olodo v. Burton (2010)
The burden of showing that Azigene farmland has been partitioned as a result of which the defendants/appellants can claim exclusive ownership of Okpuza land lies on them. Until it is shown that family or communal land has been partitioned, individual member of the family has no distinct interest in the land which is alienable. – Adekeye, J.S.C. Olodo v. Burton (2010)
On a final note I must observe that family land is rarely owned individually. It belongs to the community or family. It never loses its common ownership, and so family land is always family land. Where family land is allotted to a member of the family, he cannot alienate the land without the consent of the family. – Rhodes-Vivour, J.S.C. Olodo v. Burton (2010)