IN THE SUPREME COURT OF NIGERIA

ON THURSDAY, THE 24TH DAY OF MARCH 1983

SC 45/1982

BETWEEN

S. U. OJEMEN AND OTHERS ........................................... APPELLANTS

AND

HIS HIGHNESS WILLIAM O. MOMODU AND OTHERS .................................... RESPONDENTS

BEFORE: Irikefe, Bello, Idigbe, Obaseki, Aniagolu JJ.S.C.

The appellants were defendants to an action instituted in the High Court by the respondents who as plaintiffs claimed

(1) a declaration that the first, third and fourth appellants as their customary tenants had forfeited their rights to occupy the land in dispute

(2) recovery of possession of the disputed piece of land from the first, third and fourth appellants

(3) N2,000.00 being damages suffered by the respondents as a result of the appellants trespassing on the land in dispute; and

(4) injunction restraining the appellants, their servants and/or agents from unlawfully entering the land in dispute and/or doing any act which challenged the respondents’ right to possession of the said land.

The trial Court found for the respondents where upon the appellants appealed to the Federal Court of Appeal which dismissed the appeal after finding no merit therein. The appellant further appealed to the Supreme Court contending that the decision of a District Officer in 1939 fixing the boundary between the communities of the parties in the present case operated as estoppe per rem judicatam in the present case and that no independent witness was called by the respondent to prove the Custom which they granted a Customary tenancy of land in dispute to them. The respondents on their part objected to the arguments on the ground that they involved questions of facts or mixed law and fact and leave of neither the Federal Court of Appeal nor the Supreme Court was obtained to appeal thereon.

HELD:

(1) The overall effects of section 213(2)(a) and (3) of the 1979 Constitution are to grant an absolute right of appeal to an aggrieved party to challenge the decision of the Federal Court of Appeal in the Supreme Court on grounds which involve questions of law alone and to give to the two courts the power to grant permission to aggrieved persons to appeal against the decision of the Federal Court of Appeal on grounds which involve questions of fact alone or of mixed law and fact.

(2) The leave to appeal is not to be granted by the said courts as a matter of course but only when they are satisfied that the grounds of appeal merit the consideration of the Supreme Court.

(3) The Supreme Court will not be misled by the description of a ground of appeal as one complaining of error in law when the particulars show that the substance of the complaint is against findings of fact alone or of mixed law and facts.

(4) As the Supreme Court has no jurisdiction to entertain appeals from the decisions of the Federal Court of Appeal on grounds involving questions of fact or mixed law and fact without its leave or that of the Federal Court of Appeal and grounds 1, 2, 3, 4, 5, 6, 7, 8 and 11 of the appellants’ appeal not being ones involving questions of law alone and having been filed without leave of either of the relevant courts, the said grounds are struck out.

(5) The decision in 1939 of the District Officer settled the boundary between the land owned by the Irrua and Ewu Communities who are the parties in that action and not the boundary of land between the Ademen family and Irrua community the parties in the instant action.

(6) The claims before the District Officer in 1939 were totally different from those filed by the respondent in this case in the High Court.

(7) The pleas of res judicata therefore cannot avail the appellants in this case in view of the above.

(8) In all Civil proceedings parties are competent witnesses.

Appeal dismissed.

Cases referred to:–

(1) Ajogodo v. Adegoriola (1961) WRNLR 17.

(2) Adegboyega v. Igbinosun (1969) 1 All NLR 1.

(3) Bee v. Habib Merican Noordin (1909) AC 615.

(4) Duedu v. Yiboe (1961) 1 WLR 1040.

(5) Harrop v. Harrop (1920) 3 KB 388.

(6) Hamstead v. Taxation Commissioner (1920) AC 153.

(7) Langmead v. Maple 18 CBNS 255.

(8) Madukolu and others v. Nkemdilum (1962) 1 All NLR 587.

(9) Noivion v. Freeman 15 App Cas 1.

(10) Nwabia v. Adiri (1958) 2 FSC.

(11) Obunaw–Akpugo People v. Akanufu People (1953) 20 NMLR 135.

(12) Oduka v. Kasumu (1968) NMLR 28.

(13) Re May (1885) 28 Ch D 516.

(14) The Queen, Ex parte Ekpenga v. Ozogula II (1962) 1 All NLR 265.

Statues referred to:–

(1) Constitution of the Federal Republic of Nigeria 1979.

(2) Evidence Law Cap 57.

G. O. K. Ajayi, S.A.N. (with A. O. Aburime and I. A. Ojeme) for the Appellants.

Kehinde Sofola, S.A.N. (with Miss Nzegwu) for the Respondents

Obaseki J.S.C. The appellants were defendants to an action instituted on the 22nd day of August, 1974, in the High Court of Justice, Mid-Western State of Nigeria now High Court of Justice, Bendel State holden at Ubiaja by the respondents who, as plaintiffs, claimed:

“(1) A declaration that the first, third and fourth defendants as the customary tenants of the plaintiffs have forfeited their rights to occupy the portions of plaintiffs’ piece or parcel of land situate and lying at Irrua within the Ubiaja judicial division which said portions of land are shown verged yellow in the plaintiffs’ Plan No. MWC/719/77 filed with the amended Statement of Claim;

(2) Recovery of possession of the said portions of land from the first, third and fourth defendants.

(3) N2,00.00 (Two thousand Niara) being damages suffered by the plaintiffs as a result of the defendants trespassing on the portion of the plaintiffs’ piece or parcel of land shown verged PINK but excluding the areas shown verged yellow in the plaintiffs’ Plan No. MWC/719/77.

(4) Injunction restraining the defendants by themselves their servants and/or agents from

(i) unlawfully entered entering any portion of the plaintiffs’ said land a portion of which is shown verged GREEN in the plaintiffs’ said plan

(ii) doing any act which challenges the plaintiffs’ right to possession of the said land.”

Pleadings were ordered, settled, filed and served and the issues joined eventually came before Uwaifo, J. for trial. After hearing evidence and submissions of Counsel, Uwaifo, J. delivered a well considered judgment finding in favour of the plaintiffs/respondents in the following terms in the concluding paragraph of the said judgment.

“I am satisfied that customary tenancy of the first, third and fourth defendants has been proved and that a case for forfeiture of that tenancy has arisen. It has also been shown conclusively that all the defendants have committed acts of trespass on the plaintiffs’ land. . . I therefore make the following orders:

(1) A declaration that the first, third and fourth defendants as customary tenants of the plaintiffs have forfeited their rights to occupy the portions of land granted to them as shown verged yellow in the plaintiffs’ Plan No. MWC/719/77 exhibit E.

(2) Surrender of possession of the said portions of land by the first, third and fourth defendants to the plaintiffs;

(3) Perpetual injunction restraining the defendants by themselves their servants and/or agents from trespassing upon any portion of the plaintiffs’ land and shown in the said plan exhibit E. The second arm of the injunction sought namely, to retain the defendants from ‘doing any act which challenges the plaintiffs’ right to possession on the said land’ is too wide and I cannot grant it. For instance, that can be understood to include any legal action which the defendant may decide to bring in future to challenge the plaintiffs’ right to possession, and that in my view, cannot be prevented in this manner;

(4) N100.00 general damages for trespass against the defendants jointly and severally.

The defendants shall pay N250 costs to the plaintiffs.”

The defendants were aggrieved by the decision and appealed to the Federal Court of Appeal on 13 grounds seeking as relief the setting aside of the decision of the High Court and dismissal of the claims of the plaintiffs/respondents. The appeal was given very exhaustive consideration to see whether the reliefs sought could be granted. But the Federal Court of Appeal found no merit in the grounds of appeal and so dismissed the appeal.

Agbaje, J.C.A., delivering the lead judgment (with which Omo Eboh, J.C.A. and Okagbue, J.C.A. agreed) said inter alia:

“The arguments of Counsel for the appellants, as I understand them, arising out of these grounds of appeal are to the effect that on a proper appraisal of exhibits A to 9A to D and C the learned trial Judge was wrong in holding as he did above that what he should have held was that the boundary was as indicated by the defendants in their plan exhibit F. I cannot find any misdirection in law or in fact in the way the learned trial Judge proceeded with the determination of the issue as to what the decision under the Inter-tribal Boundaries Settlement Ordinance was. I am also not persuaded that he was ‘wrong’ in holding as he did that the boundary indicated by the plaintiffs on their plan exhibit E conformed to the boundary decided by the inquiry. In fact, having myself examined carefully exhibits A to A9, B and C used in the inquiry, I am satisfied that the decision the learned trial Judge gave was the correct one. . . I see no substance in the appellants’ complaint that the judgment in this case is against the weight of evidence. it has not been contended before us that the ground upon which the learned trial Judge ordered forfeiture of the first, third and fourth defendants’ customary tenancy was untenable nor had the appellant sought relief against forfeiture in the court below or in this Court. . . In the result the appellants’ appeal in my judgment fails and it is hereby dismissed. . .”(Italics mine).

It is against this judgment that the appellants have now appealed to this Court.

The appellants filed 11 grounds of appeal stated to be grounds of law. These grounds are as follows:

“1. The learned justices of the Federal Court of Appeal erred in law in not allowing the appeal by dismissing the plaintiffs’ claim on the ground of res judicata (see paragraph 17 statement of defence at 72).

PARTICULARS

Both sides agreed that the land in dispute formed part of the land that was adjudicated upon before between the parties, irrespective of the boundary drawn and the learned trial Judge in his judgment agreed that the elements necessary to found the plea of res judicata were present.

2. The learned justices erred in law in relying on plaintiffs’ plan ‘exhibit E.’

PARTICULARS

The learned justices relied on exhibit E as reproducing the boundary drawn in 1939 by the District Officer, whereas it is clear from the evidence led in the court below that exhibit E did not accurately reflect or reproduce the 1939 boundary as contained in exhibit B i.e. the District Officer’s sketch plan.

3. The learned justices erred in law in not adverting their minds to the effect on plaintiffs’ claims of the doctrine of laches and acquiescence which was established by the evidence of plaintiffs’ only witness.

PARTICULARS

The plaintiffs’ case was that they made grants of customary tenancies to the defendants about 30 years and twenty (20) years prior to 1977.

It was also the plaintiffs’ case that right from the beginning of the said grants defendants did not comply with any of the terms of the grant and they did nothing until 1974 when they took out this action.

4. The learned justices misdirected themselves on the facts when they held that exhibit B i.e. the District Officer’s sketch plan of the said boundary did not show the people were living in the area in dispute.

PARTICULARS

The learned justices held as above when exhibit B was not a survey plan which was intended to show the physical features on the land.

5. The learned justices erred in law, when they found that the learned trial Judge was wrong to have relied on the evidence of the second and only plaintiff witness who gave evidence at the trial but failed to advert their minds to the possibility that had the learned trial Judge not relied on the evidence of the second plaintiff he might have arrived at a different decision because only two witnesses gave evidence of the said grant and the said second plaintiff was one of them, the other being his witness.

6. The learned justices erred in law in relying on the sole evidence of third plaintiff’s witness as establishing the purported grant of customary tenancy when the evidence of the third plaintiff’s witness was vague, evasive, unreliable and contradicted by the second plaintiff.

PARTICULARS

(a) The second plaintiff under cross-examination said he was the only survivor of those who were present in 1940 when beacons were planted. This, therefore, means that third plaintiff’s witness’s claim that he also was present in 1940 is false; but the learned justices found that the said third plaintiff’s witness gave evidence of matters within his personal knowledge because he was present at the inquiry and the subsequent planting of beacons.

(b) The third plaintiff’s witness never went to the land in dispute prior to the time when the first defendant built his house there and he did not know those who lived there before the present defendants and could not have witnessed the purported grant.

(c) The third plaintiff’s witness gave evidence that the present Onogie (first plaintiff) was present when the District Officer determined the boundary in 1939 whereas the said present Onogie was not born then; and

(i) it was his grandfather who was on the throne at the time as in exhibits A and C i.e. the District Officer’s Decision and the Resident’s Review which exhibits show that it was the said Onogie’s father Amedu Momodu who represented the present Onogie’s said grandfather at the 1939 enquiry.

(ii) That the first plaintiff, i.e. present Onogie, only ascended the throne in 1971.

(d) The evidence of the third plaintiff’s witness on the purported grant was materially contradicted by the evidence of the second plaintiff.

(e) The evidence of the third plaintiff as to the inception of the purported trespass by the defendants was at variance with paragraph 18 of the plaintiff’s pleadings in that at page 107 line 31, the plaintiff said ‘since the defendants have been on the land they have not complied with any of the terms of the grant.’

7. The learned justices erred in law in failing to properly evaluate the evidence.

PARTICULARS

They relied on the evidence of the third and only plaintiff’s witness as against the evidence of the defendants and their witness who gave consistent, uncontroverted and corroborative evidence of long possession, thereby naming their ancestors who lived on the land in dispute before. This is confirmed by the evasive and negative evidence of third plaintiff’s witness (Aguakhekiemen Iselobho) who maintained through his evidence that he never went to the land in dispute prior to the first defendant coming thereon and that he did not know those who lived there before.

8. The learned justices erred in law in upholding plaintiffs’ claim after rejecting their evidence.

Only one plaintiff (second plaintiff) gave evidence on behalf of the plaintiffs and only one witness (third plaintiff’s witness) gave evidence in support of second plaintiff, the other two witnesses being the plaintiffs’ surveyor and an official who tendered the previous proceedings before the District Officer and Resident.

The trial Judge relied on the evidence of the second plaintiff and plaintiff’s said only witness (third plaintiff’s witness) in giving judgment for the plaintiff. But the learned justice held that the learned trial Judge was wrong to have relied on the evidence of second and only plaintiff who gave evidence. With rejection of plaintiff’s evidence, the learned justices should have dismissed the claims.

9. The learned justices erred in law in not dismissing the plaintiff’s claims as having been overtaken by the Land Use Decree (now the Land Use Act) of which judicial notice should have been taken.

PARTICULARS

The Land Use Decree (now Land Use Act) which came into force in March, 1978, vested all lands in the State in the State Government and completely abolished the vesting of land in a community.

Since the promulgation of the Decree, the plaintiffs (the Irrua community) ceased to have interest in the land in dispute.

10. The learned justices of the Federal Court of Appeal erred in law in upholding the decision of the learned trial Judge when the plaintiffs’ claim was based on customary tenancy, but no evidence of the custom was adduced.

PARTICULARS

The plaintiffs relied on a purported grant of customary tenancy but did not call any witness to give evidence of the existence of such custom or its procedure.

11. The decision of the learned justices is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.”

Briefs of arguments were filed by learned Counsel for the parties and at the oral hearing, learned Counsel for the appellants amplified his submissions on grounds 5 and 10. However, Counsel for the respondents objected to arguments on the grounds of appeal involving questions of facts or mixed law and facts as there was no leave obtained from either the Federal Court of Appeal or the Supreme Court to appeal on grounds which involve questions of facts or questions of mixed law and fact. He submitted and contended quite rightly, in my view, that it is only on grounds of appeal involving questions of law alone that the appellants needed no leave to appeal and cited section 213(2)(a) and section 213(3) of the 1979 Constitution in support of this objection.

This objection was well founded, formidable and unanswerable. Learned Counsel for the appellants, quite properly, readily conceded the point of objection but maintained while agreeing with the objection of Counsel to grounds of appeal involving questions of fact and/or questions of mixed facts and law, that the grounds of appeal particularly grounds 5 and 10 which he was dealing with raised questions of law alone and submitted that proof of Customary Law is a question of law not fact.

It will, I think, put the matter in the correct perspective if I give a brief summary of the facts of this case as found by the learned trial Judge.

The plaintiffs are natives of Irrua town in Bendel State. Indeed, the first plaintiff is the natural ruler of the Irrua people while the second, and third plaintiffs are prominent members of the Irrua Community. The defendants are members of the Ojemen family of Ewu. Ewu and Irrua are towns in the old Ishan Division adjacent to each other. Following a boundary dispute in the 1930s between the Irrua and Ewu clans in the vicinity of Eko-Ojemen, one Mr H. Spottiswoode who was then the District Officer in charge of Ishan was issued with a commission under the Inter-Tribal Boundary Settlement Ordinance No. 49 of 1933 to enquire into and settle the boundary dispute. The inquiry was held in 1939 and after hearing evidence on both sides at the locus in quo and other places, the District Officer considered the evidence before him, rejected the claims of the Irrua people as regards the location of the boundary and fixed a boundary separating the land owned by the two communities which he described in the sketch map tendered in this case as exhibit B in the High Court. Both the Ewu and Irrua communities accepted the decision and have kept to the boundary ever since. Both parties are agreed on the facts recorded in exhibit A to A9, exhibit B but the defendants/appellants dispute the correctness of the boundary in its location as shown in plaintiffs’ plan contending that the plaintiffs’ plan does not represent the boundary as shown in exhibit B. It maybe recalled that the District Officer did not accept Irrua’s claim as regards the location of the boundary. Aggrieved, the Irrua people appealed to the Resident for a review of the District Officer’s decision. The Resident also rejected that claim and confirmed the decision of the District Officer and the boundary line fixed by him. The decision of the District Officer expressly fixed the boundary between Ewu and Irrua clans as follows:

“From the Obada Tree at L on the sketch map in a straight line to the Ukhimi Tree at K; thence in a straight line to the Ukhimi Treeat E, thence in a southernly direction along the (now abandoned) Udumiuwele to Agwa path to the Ukhimi at D; thence along to Ekogieme-Agwa path in a southernly direction to a point C where it is met by a trace, distance approximately 580 yards from the cross-paths to Agwa, thence in a south-westernly direction along this trace to a point B, on the path from Agwa to Ihumudumu, approximately 3,000 yards east of the Irrua to Ewu motor road; thence along the path in a westernly direction crossing the motor road to the point where the path crosses to Ekpoma clan boundary, at or near the Uhurola Tree at H.”

The record of proceedings together with the decision of the inquiry is contained in a record book, titled and known as Inter-Tribal Settlement Ordinance Record book and the relevant pages were tendered and admitted in evidence and marked exhibit A, A1-A9. After a careful study of the sketch map exhibit B and the decision and the evidence before him, the learned trial Judge, Uwaifo, J., observed and concluded:

“The District Officer did not accept Irrua’s claim and that probably explains why Irrua appealed to the Resident as per exhibit C. The Resident also rejected that claim and confirmed the decision of the District Officer. The District Officer, however, did not accept the boundary as passing through point A but rather shifted the boundary line northwards to the Uhumudumun/Agwa path which boundary is indicated in exhibit B between points H and B. I would say that in establishing the entire boundary, the District Officer was guided by the evidence available. . . It is clear to me from exhibits A to A9, B and C that Ewu clan (which includes Eko-Ojemen) were awarded substantially what was claimed at the inquiry to be the boundary at point A by Akhidelo, which can be seen to be fairly close to Uhumudumun/Agwa path. Now is the award different (or materially different) from the boundary which the plaintiffs have asserted in their [plan] exhibit E as far as the subject matter of dispute is concerned? Or put in a different context, does the assertion by the defendants as shown in their [plan] exhibit F conflict with the boundary shown in exhibit B? I think one must inevitably look at what is, without a doubt, the common landmark in the said exhibits B, E and F capable of deciding either of the above questions to the same end. That landmark is the Uhumudumun/Agwa path which fairly accurately features in all three exhibits as to its comparative position. It follows that any land shown to be on the south of Uhumudumun/Agwa path cannot be part of Eko-Ojemen or Ewu but Irrua land, as far as the claim in this action is concerned; that is to say the whole of the land verged pink in exhibit E. Before I go further, let me say a word or two about the land shown to be in dispute in the defendants’ plan, exhibit F. In exhibits B, E and F, there is another common feature, the old Auchi Road (or Irrua-Auchi Road). The inquiry made reference to point A along that road which is roughly midway between two milestones namely Agbor (or Ag.) 49 and Auchi (or Au) 25 at one end and Agbor (or Ag.) 48 and Auchi (or Au) 26 at the other end; that point A is said to be 25.55 miles from Auchi. The award that shifted the boundary a little northwards towards milestone Auchi 25 (or Agbor 49) is shown in exhibit B.

So by no stretch of the imagination can Ewu land be said to extend up to milestone Auchi 26 (or Agbor 48). But defendants in their plan have put the area of land in dispute both in width and in length far into Irrua land, particularly up to milestone 48 along the Old Auchi road. There is no indication near milestone 48 in that plan of the existence of a bamboo fence which seems to be a reminder of the bamboo mentioned by Akhidelo the Odionwere of Eko-Ojemen at point A. but that point is far and away from where the defendants now indicate in their exhibit F. By claiming such a large area of land within Irrua land as being in dispute the defendants in my view are asserting a right in complete disregard of the inquiry of 1939 and in uncompromising challenge of the Irrua people’s claim to all that land. Can the defendants indeed do this?. . .

To this end, learned Counsel for the defendants addressed me exhaustively (1)…. (2)…. (3)…. (4) that the settlement arrived at under the Inter-Tribal Boundary Settlement Ordinance is sufficient to found a plea of res judicata. . .

I agree substantially with the submissions in (1) to (4) above. But as they relate to the major issue to be decided in this action, namely, who are rightful owners of the land in dispute, I think with due respect, there is some misconception. The issue is, the boundary between Irrua and Ewu having been established at the inquiry of 1939, and that boundary being clear, are the plaintiffs not entitled to use the decision at that inquiry as the basis of their ownership of the land in question?. . .

On the other hand, can they not use that decision to make it impossible in law for defendants to deny the plaintiffs’ ownership or prevent the defendants from setting up adverse interest? That is what those paragraphs of the plaintiffs’ Statement of Claim have sought to do and indeed that is what the submission of learned Counsel for the defendants and the authorities (cited) in support can be understood to stand for. Before considering the law on this aspect let me say that learned Counsel for the defendants was again, curiously enough, right that what is binding on Ewu and Irrua clan in the 1939 inquiry must bind Eko-Ojemen village land together with Ojemen family of Ewu who reside within Eko-Ojemen land and who in the circumstances of the present case, claim to derive their title from the fact of the extent of Eko-Ojemen village (in Ewu) as established by the 1939 inquiry; and the decision of that inquiry must also continue to bind the whole of Irrua people now represented in this action by the present plaintiffs. He is right not in the sense that he has urged that the plaintiffs are estopped from bringing this action but only to the extent that the decision binds both parties. . .

I have already, as I am entitled to do, looked at the way the boundary was decided and drawn in order to be able to decide whether or not the defendants are on the plaintiffs’ land. . .

Learned Counsel for the defendants argued that the question of tenancy cannot be decided without going into the issue of ownership. That is true, but that issue, I think, has been sufficiently decided in this judgment in favour of the plaintiffs.” (Italics mine).

Between 20 and 30 years ago, after the 1939 inquiry, the first, third and fourth defendants approached the plaintiffs’ community for land as customary tenants under Irrura Customary Law. The community granted their requests and gave them pieces or parcels of land verged and coloured yellow on plaintiffs’ plan exhibit E.

As customary tenants, the Customary Law of Irrua community demands that they acknowledge their landlords’ title to the land, be of good behaviour and keep within the area granted to them. Between 1972 and 1974, the defendants by themselves, their servants and or agents broke and entered the portion of plaintiffs’ and verged pink in exhibit E outside the area granted to the first, third and fourth defendants, cutting down economic trees and committed other acts of trespass including building operations on the land. On being confronted by plaintiffs’ community, defendants denied plaintiffs’ title to or ownership of the land and claimed that title to the land resided in the Ojemen family. Rubber trees, bananas, kolanut trees, breadfruit trees and others were the economic trees destroyed by the defendants. These economic trees were allegedly owned individually by members of Irrua community.

The defendants claimed the land to be their family land and being members of Ewu community, they also claimed the land as part of Ewu land. They denied ever receiving any customary tenancy grant of land from the plaintiffs and contended that they were no customary tenants of the plaintiffs. They denied that the land in dispute falls within the Irrua side of the boundary established between Ewu and Irrua in 1939 by Mr Spottiswoode following the findings of the inquiry he conducted to the boundary dispute between the two communities.

The learned trial Judge, however, after carefully examining the evidence, found as a fact that the land in dispute on which the defendants have their buildings erected after the 1939 inquiry is on the Irrua side of the boundary and the property of the plaintiffs and that the plaintiffs admitted the first, third and fourth defendants into the various parcels of land as customary tenants in respect of the pieces of land granted to and occupied by them.

The facts found by the learned trial Judge were not disturbed but confirmed by the Federal Court of Appeal.

Agbaje, J.C.A., in his lead judgment, projecting his concurrence with the learned trial Judge’s findings of facts said:

“In other words, the learned trial Judge upheld the contentions of the plaintiffs that the boundaries determined and settled by the decision of an inquiry under the Inter-Tribal Boundaries Settlement Ordinance was as indicated by the plaintiffs in their plan exhibit E.

It is this part of decision of the learned trial Judge that the defendants have attacked in their grounds 1 to 4 of their grounds of appeal. . . I cannot find any misdirection in law or in fact in the way the learned trial Judge proceeded with the determination of the issue as to what the decision under the Inter-Tribal Boundaries Settlement Ordinance was. I am also not persuaded that he was wrong in holding as he did that the boundary indicated in their plan exhibit E conformed to the boundary decided by the inquiry. In fact, having myself examined carefully exhibits A to A9, B and C and particularly the plan exhibit B used in the inquiry, I am satisfied that the decision the learned trial Judge gave was the correct one.” (Italics mine).

On the finding that the first, third and fourth defendants were customary tenants, the learned justice of the Federal Court of Appeal observed after referring to part of the evidence of Joseph Izokun (PW3).

“. . . This evidence which was accepted by the learned trial Judge establishes by itself that the first, third and fourth defendants were customary tenants of the plaintiffs on the land in dispute and that each of them got on the land in the first place as customary tenants of the plaintiffs after the decision of the District Officer, Mr H. Spottiswoode who presided over the inquiry set up under the Inter-Tribal Boundaries Settlement Ordinance. This witness spoke of facts within his knowledge. I am not persuaded that the learned trial Judge was wrong in accepting the evidence.” (Italics mine).

Having reflected the facts pertinent to this matter as found by the two courts below, i.e. the High Court and the Federal Court of Appeal, I shall now proceed to consider the submissions of Counsel.

The objection raised by Counsel for the respondents to arguments on grounds other than grounds involving questions of law alone is quite substantial and after going through the 11 grounds of appeal, has impressed me as having great merit in it. Learned Counsel for the appellants as mentioned earlier, conceded the point made by Counsel for the respondents and the records support him that the appellants neither applied for nor were they granted leave to appeal against the decision of Federal Court of Appeal to the Supreme Court.

The appellate jurisdiction of the Supreme Court derives from the provision of section 213 of the 1979 Constitution of the Federal Republic of Nigeria. Of particular relevance to this point of objection under consideration are subsections (1), (2) (a) and (3) of section 213, the provisions of which read:

“(1) The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Federal Court of Appeal;

(2) An appeal shall lie from decisions of the Federal Court of Appeal to the Supreme Court as of right in the following cases—

(a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Federal Court of Appeal.

(3) Subject to the provisions of subsection (2) of this section, an appeal shall lie from the decisions of the Federal Court of Appeal to the Supreme Court with leave of the Federal Court of Appeal or the Supreme Court.” (Italics mine).

Questions in controversy between the parties may be questions of law on admitted facts, questions of disputed facts or questions party of law and partly of facts referred to as questions of mixed law and fact. These questions normally arise from the pleadings settled by parties in the High Court; and again, the resolution or determination by the trial Judge or the justices of the Federal Court of Appeal may not give full satisfaction to the parties and these usually lead to complaints formulated in the grounds of appeal.

I may at this juncture refer to the provision of Order 12, rule 1 of the Bendel State High Court (Civil Procedure Rules) Cap 65 Vol. 3 Laws of Bendel State 1976. It reads:

“At any time before or at the hearing, the court may if it thinks fit, on the application of any party, or of its own motion, proceed to ascertain and determine what are the material questions in controversy between the parties and may reduce such questions into writing and settle them in the form of issues which issues when settled may state questions of law on admitted facts or questions of disputed facts or questions partly of the one kind and partly of the other.” (Italics mine).

The phrase “an appeal shall lie from the decisions of the Federal Court of Appeal to the Supreme Court as of right”, in my view, implies that an absolute right of appeal is granted by the Constitution to an aggrieved party to challenge the decision of the Federal Court of Appeal in the Supreme Court on grounds which involve questions of law alone. On the other hand, the provision that “an appeal shall lie…to the Supreme Court with leave of the Federal Court of Appeal or Supreme Court” implies that only the right to apply to the Federal Court of Appeal or Supreme Court for leave to appeal is conferred by the Constitution on the aggrieved party. “Leave” in this context means permission. See Webster’s New Twentieth Century Dictionary Unabridged. It is the courts, i.e. The Federal Court of Appeal and the Supreme Court that are given the power to grant the permission to aggrieved persons to appeal in this class of cases falling outside those which are within section 213(2)(a) of the Constitution. This power, in my view, when invoked, is only to be exercised in cases where the Federal Court of Appeal or the Supreme Court is satisfied that there are substantial and good grounds of appeal which involve questions of mixed law and facts or questions of facts alone that merit the consideration of the Supreme Court. The right of appeal or leave to appeal on those grounds is not to be granted just as a matter of course.

The need to exercise this power after serious consideration of the record of proceedings is emphasised by Order 9, rules 1(2)(a), (b), (c), (d) and (e) and rule 1 (6) of the Supreme Court Rules 1977 and section 213(4) of the Constitution of the Federal Republic of Nigeria, 1979. Rule 1(6) of Order 9 reads:

“An application for leave to appeal may be considered and refused by the court on the written arguments submitted by the applicant in support. The application may also be granted or refused after hearing oral argument.”

More importantly, section 213(4) of the Constitution 1979 reads:

“The Supreme Court may dispose of any application for leave to appeal from any decision of the Federal Court of Appeal in respect of any civil or criminal proceedings in which leave to appeal is necessary after consideration of the record of proceedings if the Supreme Court is of the opinion that the interests of justice do not require an oral hearing of the application.”

Having set out above the 11 grounds of appeal on which the appellants have grounded their complaint against the decision of the Federal Court of Appeal, it is now my duty to examine them to see whether they are caught by the objection raised by learned Counsel for the respondents i.e. whether they are grounds outside the provisions of section 213 (2) (a) and requiring leave under section 213 (3) of the Constitution.

Ground 1 raises the validity of the plea of res judicata, a question of law but also involves a question of fact, i.e. whether all the issues raised in these proceedings have been adjudicated upon in the previous proceedings and all the rights of the parties determined finally. I shall deal more elaborately with this ground in the latter part of this judgment.

Ground 2 is not a ground involving a question of law alone. It deals with evidence produced or adduced at the trial and challenges the findings of fact.

Ground 3 does not involve questions of law alone. It deals with the consideration of the evidence and involves the question of fact i.e. whether there should have been a finding that the plaintiffs have been guilty of laches and acquiescence. It is not the law that a customary tenant who does not fulfill the terms of his tenancy becomes a trespasser ipso facto. This ground therefore does not involve questions of law alone although so phrased.

Ground 4 raises only questions of fact. It clearly complains of misdirection on the facts.

Ground 5 involves the question of fact whether there was sufficient evidence of the grant of customary tenancy to the appellants. This clearly does not involve question of law alone. The complaint sipliciter is against the finding of the learned trial Judge and the justices of the Court of Appeal that there was a grant of customary tenancy, an issue of fact.

Ground 6 involves only questions of fact certainly not questions of law alone. It complains of the quality of evidence in short.

Ground 7 raises the issue of proper evaluation of evidence. It is a complaint against findings of facts and the ground does not involve question of law alone.

Ground 8 complains of weight of evidence. The ground therefore does not involve questions of law alone.

Ground 9 involves questions of law alone but since Uwaifo, J., delivered his judgment on the 7th day of February, 1978, about three weeks before the Land Use Decree was promulgated (the Land Use Decree came into force on 29th March, 1978), this ground of appeal is therefore misconceived. I shall give it further consideration later in this judgment.

Ground 10 as couched or framed involves questions of law alone but is not open or available to the appellants as it appears to have been filed in total disregard of the facts on record. It is based on false premises and is totally misconceived in view of the evidence of customary tenancy in the record of appeal from the High Court to the Federal Court of Appeal.

Ground 11 complains of the weight of evidence and does not involve questions of law alone.

Grounds 2 to 8 could have conveniently and conceivably come under ground 11.

Having briefly examined all the grounds of appeal, it is probably necessary to emphasise that this Court will not be misled by the mere description of a ground of appeal as a ground complaining of Error in law when in fact, the particulars show clearly that the complaint or the substance thereof is against the evaluation, assessment, weight of evidence, findings of fact or a complaint of misdirection on the facts or mixed law and fact.

As this Court has no jurisdiction to entertain appeals from decisions of the Federal Court of Appeal on grounds which involve questions of fact or mixed law and fact without leave either of the Federal Court of Appeal or this Court, this Court has a heavy constitutional duty to examine and study the grounds in support of appeals before it carefully and satisfy itself that they are those in respect of which it has jurisdiction to entertain before commencing with the hearing of the appeal. Having examined all the grounds of appeal in this case, I find that grounds 1, 2, 3, 4, 5, 6, 7, 8 and 11 involve questions of fact or mixed law and fact. I hereby strike them out. With regard to ground 9, learned appellants’ Counsel’s written submission is that since the Land Use Act vested all lands in the State in the State Military Governor as from 29th March, 1978, the Irrua community from that date ceased to have interest in the land in dispute. As pointed out by learned Counsel for the respondents and the Federal Court of Appeal, learned appellants’ Counsel seem to have overlooked the fact that the rights of the parties to these proceedings were determined by the High Court, Ubiaja (Uwaifo, J.) on the 7th day of February, 1978, in the judgment of that court delivered on and bearing that date.

All appeals, first to the Federal Court of Appeal and now to this Court have been against that determination and judgment. No new declaration of rights has since then been made by the courts. None was made by the Federal Court of Appeal. The provision of the Act (formerly Decree) to which this ground of appeal refers is section 40 which reads:

“Where on the commencement of this Decree proceedings had been commenced or were pending in any court or tribunal (whether at first instance or on appeal) in respect of any question concerning or pertaining to title to any land and or interest therein, such proceedings may be continued and be finally disposed of by the court concerned but any order or decision of the court shall only be as respects the entitlement of either of the parties to the proceedings to a right of occupancy, whether statutory or customary in respect of such land as provided in this Decree.” (Italics mine).

When the defendants appealed from the judgment of the High Court on the 10th day of February, 1978, the relief sought from the Federal Court of Appeal was:

“To allow the appeal set aside the decision of the High Court and dismiss the claims of the plaintiffs/respondents.”

After hearing Counsel’s submission, the learned Justices took time to consider the submissions and arguments and in a well considered judgment, the appeal was dismissed and the decision of the High Court was affirmed. There was therefore no fresh determination of the rights of the parties to evoke the application of section 40 of the Decree (now Act). The Federal Court of Appeal well considered judgment, the appeal was dismissed and the decision of the High Court was affirmed. There was therefore no fresh determination of the rights of the parties to evoke the application of section 40 of the Decree (now Act). The Federal Court of Appeal delivered its considered judgment on the 11th day of June, 1981, Abaje, J.C.A., reading the lead judgment concurred by Omo-Ebo, J.C.A. and Okagbue, J.C.A. The dismissal of the appeal did not involve the Federal Court of Appeal in any declaration of rights.

As the Irrua community is entitled to own property, there is nothing in the Decree to prevent the community for applying for the issue of a certificate of occupancy by the appropriate authority–statutory or customary right of occupancy–to the piece or parcel of land the subject matter of the proceedings in respect of which Uwaifo, J. declared them owner and ordered possession to be delivered on the 7th day of February, 1978.

I can therefore see no merit in this ground of appeal.

As regards ground 10, the contention of learned Counsel for the appellants is well set out in his brief as follows:

“The second plaintiff and the third plaintiff’s witness were the others who gave evidence. Although these two referred to the custom under which they allegedly granted the tenancy to the defendants, they did not call any independent witness to establish the existence and contents of such a custom.”

Put in another way and more accurately, the complaint is not that there was no evidence of native law and custom adduced but that an independent witness was not called to testify. This is therefore not strictly a ground which raises the question of law alone to enable the appellant to appeal as of right without leave of the Federal Court of Appeal or the Supreme Court. See section 213 (2) (a), and section 213 (3) of 1979 Constitution.

I may at this juncture draw attention to the attitude of this Court on the question of proof of a rule of Customary Law. I refer to the case of Adegboyega v. Igbinosun (19699) 1 All NLR 1. There it was held inter alia as follows:

“it is settled law that except where a rule of Customary Law has received judicial recognition, such rule is treated for the purpose of proof as a matter of fact.”

There is an interesting aspect of the issue raised which involves the following question:

“Who is the independent witness to testify on the custom of a community where the community itself is a party to the case?”

I shall in the course of this judgment, deal with the question. Insofar as learned Counsel in his submissions has conceded the existence of evidence in proof of the native law and custom, howbeit from the second plaintiff and third plaintiff’s witness whom Counsel regarded as the plaintiffs in this matter but not independent, Counsel cannot strictly be heard to say that there is no proof of native law and custom on record. Learned Counsel however has supported his argument with the famous dictum of Ademola, C.J.F., in The Queen ex parte Ekpega v. Ozogula II (1962) 1 All NLR 265 at page 268 which reads:

“It is of the greatest importance that the native law and custom be strictly proved. It is correct that a custom is not proved by the number of witnesses called, but it is not enough that one who asserts the custom should be the only witness.” (Italics mine).

This dictum, in my view, is of no assistance to the appellants’ case. Learned Counsel for the appellants in an apparent effort to utilise the dictum to advantage, contended that as the Federal Court of Appeal has found the second plaintiff’s evidence unreliable and since the third plaintiff’s witness is a member of the Irrua community, the test set out by Ademola, C.J.F., in Ekpenga’s case (supra) still has to be satisfied by the plaintiffs’ evidence to qualify as proof. With the greatest respect to learned Counsel for the appellants, that famous dictum does not admit of the narrow construction being put on it. The Federal Court of Appeal, it should be observed, did not condemn the totality of the evidence of the second plaintiff as unreliable. The learned Justice Agbaje, J.C.A., who read the lead judgment chose his words carefully when he said, after quoting a portion of the learned trial Judge’s (Uwaifo, J.) judgment ending with his conclusion “All that may case one to wonder in one’s mind but it has not really affected his evidence as a whole.”

“I am inclined to agree with Counsel for the appellants that the evidence of the second plaintiff as to how the defendants got on the land in dispute was unreliable and accordingly the learned trial Judge should have given little or no weight to the evidence on this point. . . The evidence of the second plaintiff’s witness was unreliable as to how the defendant got on the land because according to the witness he did not know when the grants to the first, third and fourth defendants were made. It follows therefore that he could not give primary evidence as to grants. But the same criticism in my view could not be levelled at the evidence of the third plaintiff’s witness, Joseph Izokun on the same point.” (Italics mine).

It is clear, therefore, that the evidence given by the second plaintiff in proof of the native law and custom has not been impugned as contended. The evidence on this point reads:

“Under our native law and custom, if the first, third and fourth defendants departed from the terms of the grant they forfeit the land granted to them. They now claim the land as theirs and destroyed our economic crops thereon, they now say that they are the landlords and we are the tenants. We have asked them why they are behaving in this manner but they refuse to acknowledge us as the landlords. So we decided to come to court.” (Italics mine).

Learned Counsel conceded that the third plaintiff’s witness gave evidence in proof of native law and custom. That piece of evidence adduced by the third plaintiff’s witness on native law and custom reads:

“Seven beacons were planted altogether. Thereafter, the fourth defendant came to us to ask for land. This would be about 30 years ago. We granted him land upon his request. We showed him the portion granted him. We did this by planting Ukhimi trees to show the extent of the land granted as we usually do when we grant land to any person. We did not give a term of years as we do not usually do this. But if a grantee behaves badly towards us, we ask him to quit the land. According to our native law and custom, a grantee who refuses to participate in any local affair to which he is invited who fails to pay in our area, who claims our land to be his or his peoples, who destroys our economic crops, is said to behave badly. If our tenant decides to quit, he is free to do so but the land reverts to us.”

Learned Counsel’s submission that no independent witness testified, cannot, in my view, be accepted. The making of this submission has, in my view, destroyed the character of ground 10 as a ground of law alone as it has introduced a new question, that of sufficiency of evidence.

It is settled law that native law and custom or Customary Law not judicially noticed can be proved by evidence of witnesses belonging to the community to show that that community in the particular area regard the alleged Customary Law as binding upon them. In the peculiar nature of this case, members of Irrua community with special knowledge of their Customary Law whether represented parties in or parties to this case are competent witnesses.

Ekpenga’s case cannot be given a construction which violates the statute law and excludes members of the community from being competent witnesses or independent witnesses because the community to which they belong is a party to the case.

The provisions of section 14 (2) of the Evidence Law Cap 57 Laws of Bendel State 1976 did not stipulate any number of witnesses in its provision which reads:

“where a custom cannot be established as one judicially noticed, it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons concerned in the particular area regard the alleged custom as binding on them…”

The emphasis is on evidence not number of witnesses. In the realm of proof of native law and custom, the dictum of Ademola C.J.F. in Ekpenga’s case will always enjoy a pride of place as a guiding principle in the search for the applicable native law and custom. Common sense dictates that only persons who regard the custom as their own and binding on them are competent to adduce evidence in proof be they parties or not.

In all civil proceedings, parties are competent witnesses. In this regard, section 157 of the Evidence Law Cap 57 Vol. III Laws of Bendel State 1976 provides:

“subject to the proviso contained in section 147, in all civil proceedings, the parties to the suit, and the husband or wife of any party to the suit shall be competent witnesses.”

See also Phipson on Evidence 12th Edition paragraph 1492 page 597. The class of persons who are competent witnesses is very wide as section 154 (1) Cap 57 Laws of Bendel State 1976 provides:

“All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by reason of tender years, extreme old age, disease whether of body, mind or any other cause of the same kind.”

The dictum of Ademola, C.J.F., stated the legal position quite correctly as to the number of witnesses prescribed by law. In this regard, section 178 (1) of the Evidence Law Cap 57, Laws of Bendel State 1976 reads:

“Except as provided in this section, [in regard to Treason, and Treasonable offences, perjury, exceeding speed limit, sedition and sexual offences], no particular number of witnesses shall in any case be required for the proof of any fact.”

It is in the interest of the party who asserts the existence of a custom to ensure that there is sufficient and cogent evidence adduced before the court in proof of the custom.

I will now return to and end this judgment with a further consideration of the issue of res judicata raised in ground 1. I am in entire agreement with the learned trial Judge Uwaifo, J. and the learned justices of the Federal Court of Appeal that the plea was misconceived and the ground of appeal raising it was misconceived. The doctrine of res judicata is so well settled as to require any restatement. It has its true foundation in the legal maxim “nemo debet bis vexari pro una et eadem causa” (no man ought to be twice vexed or harassed i.e. tried for one and the same cause). If an action be brought and the merits of the question be discussed between the parties and a final judgment obtained by either, the parties are concluded and cannot canvas the same question again in another action although perhaps some objection or argument might have been urged upon the first trial which would have led to a different judgment. In such a case, the matter in dispute having passed in rem judicatam the former judgment while it stands is conclusive between the parties if either attempts by commencing another action to re-open that matter. It is the fundamental doctrine of all courts that there must be an end to litigation [“interest reipublicae ut sit finis litium” (See Co. Rep. 9 (a)]. The above principles have found judicial restatement in many decided cases in recent years in the Superior Courts in England and Nigeria a few of which I will mention hereunder.

Ajogodo v. Adegoriola (1961) WNLR 17.

Morinatu Oduka v. Kasumu (1968) NMLR 28.

Madukolu and others v. Nkemdilum (1962) 1 All NLR 587.

Obunaw-Akpugo People v. Akanufu People (1953) 20 NLR 135.

Nwabia v. Adiri (1958) 2 ESC [Re May (1885) 28 Ch.D 516 at 518 CA per Brett MR

Bardar Bee v. Habib Merican Noordin (1909) AC 615.

Hoystead v. Taxation Commissioner (1926) AC 155, 165, PC per Lord Shaw.

Langmead v. Maple 18 CBN S 255.

Noivion v. Freeman 15 App Cas 1.

Harrop v. Harrop (1920) 3 KB 386.

Yaw Duedu v. Eyi Yiboe (1961) 1 WLR 1040].

The 1939 Inquiry by Mr Spottiswoode into the boundary dispute between Ewu and Irrua communities settled the boundary between the land owned by the two communities and not the boundary of land between the Ojemen family and Irrua Community. The parties to that inquiry were Ewu community and Irrua community. They accepted the decision of Mr Spottiswoode as affirmed by the Resident. The claims before Mr Spottiswoode were totally different from the claims filed by the plaintiffs/respondents in this case in the High Court. The lands or parcels of land in respect of which the claims in this matter were filed were claimed by the plaintiffs/respondents and were so found by the learned trial Judge as falling within their land on their own (Irrua) side of the boundary fixed by Mr Spottiswoode not on Ewu side of the boundary.

The plea of res judicata can therefore, as a defence to the action, find no place in these proceedings and it was properly rejected by the High Court (Uwaifo, J.) and the Federal Court of Appeal. This is so as the facts on which the appellants founded the plea are misconceived.

In view of the concurrent findings of the two courts below that the land the subject matter of the action filed by the plaintiffs/respondents is on Irrua’s (community’s) side of the boundary, it is not open to the appellants to contend the contrary without leave and since no leave was obtained to appeal on the grounds involving questions of fact, it is incompetent for the appellants to raise and argue this ground–ground 1. I will accordingly dismiss this ground of appeal.

There is no merit in this appeal and I hereby dismiss it and the appellants shall pay the respondents’ costs fixed at N300.00 (Three hundred Naira).

Irikefe J.S.C. I had the advantage of a preview of the judgment just read by my learned brother, Obaseki, J.S.C. and I am in full agreement with the views expressed therein, both on matters of law and fact.

I also would dismiss this appeal and do so with costs as ordered in the lead judgment aforesaid.

Bello J.S.C. I had the privilege of reading in draft the judgment delivered by my learned brother, Obaseki J.S.C. I agree with his reasoning and conclusions. I dismiss the appeal and award N300.00 costs to the respondents.

Idigbe J.S.C. I have had the privilege of reading the draft of the judgment just read by my learned brother, Obaseki J.S.C., and I agree that for the reasons therein stated this appeal should be dismissed. I endorse the orders in the said judgment.

Aniagolu J.S.C. I was opportuned to read in draft the judgment just delivered by my learned brother, Obaseki, J.S.C. I agree that, for the reason stated by him in the said judgment, this appeal should be, and is hereby, dismissed with N300.00 costs to the respondents.