CHIEF AYOMANO
V.
GINUWA II

JELR 81222 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
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Other Citations
1943 9 WACA 85-94
CORAM
COR. KINGDON PETRIDES AND GRAHAM PAUL C.JJ.
Core Terms Beta
evidence
case
trial judge
chief dore numa
declaration of title
sapele township
members of the okpe clan
itsekiri people
people of okpe clan
people of the okpe clan
ample evidence
chief asan edwin omarin
chief ayomano
chief dore numa of benin river
cross-examination
evidence of the defendant
learned trial judge
political agent
rightful owner of the land
sapele lands
weight of evidence
considerable influence
defendant-appellant
defendants’ claim
evidence counsel
findings of fact
firm of mciver limited
further states
government of the land
grant of that privilege
grounds of appeal
head chief of the plaintiffs
impudent claims
jekkri tribe
late representative chief dore numa
olu of itseki
own views of the arguments
plaintiffs’ evidence
said itsekiri people of sapele
sobo chief
traditional stories
trial judge states
whole of the land

PETRIDES, C.J., GOLD COAST. The plaintiffs by their pleading claimed a declaration of title to the land known as Sapele Township. They alleged that they were owners in possession and had exercised rights of ownership from time immemorial.

The defendant in his defence denied the plaintiffs’ allegation and pleaded that the Olu or his representative had “ever been the rightful owner of the land for the Itsekiri people”.

In paragraph 9 of the Defence the defendant pleaded that “as overlord of all Sapele lands he is entitled to receive rents from tenants placed there by him or his late representative Chief Dore Numa and further states that the plaintiffs are subjects of his and owe allegiance to him as their overlord”.

The plaintiffs belong to the Sobo tribe and the defendant to the Jekkri tribe and are referred to herein as Sobos and Jekkris respectively.

The trial Judge found there was no dispute that Jekkris had been on the land in dispute between 1890 and 1908. He mentions the year 1908, as this was the year in which the whole of the land in dispute was leased to Government for a term of ninety-nine years. There is no doubt that from 1908 up to date Jekkris have continued to live on the land. In the course of his judgment the learned trial Judge stated “I can find no substance in the defendants’ claim in their defence either as to ownership or as to overlordship. They might well be described as impudent claims”.

On the other hand he found that for all practical purposes, the whole area now claimed was formerly farmed by Sobos. After the “Nana War” , which took place in 1894, “a large number of Jekkris ran for refuge to Sapele and there obtained the permission of the Sobos to settle, giving customary dashes for the grant of that privilege” . Some time later the firm of McIver Limited arrived and obtained the permission of Ogodo, a Sobo Chief, to settle. Each year that firm paid £20 rent to Ogodo, during his lifetime, and from his death until the present day to his son.

In 1899 Mr. Isaac Palmer settled at Sapele and was introduced to Ofotuku, who was then recognised as the Head Chief of the plaintiffs. He was given a piece of land by Ofotuku in respect of which he paid a rent of £5 per annum to Ofotuku and his successors, including the first plaintiff, until the trial. This witness stated that he assisted the Bishop to acquire the site upon which St. Luke’s Church now stands and he introduced the Bishop to Ofotuku and to the late Omarin, the father of the present

Plaintiff Omarin as being the persons entitled by custom to deal with the land. He stated that this occurred prior to the lease to Government of the land in 1908. In 1907 the first plaintiff gave Ituke, a Jekkri, a piece of the land in dispute.

There is evidence on the record that the Sobos granted other sites to Eqropean Mercantile Firms and the trial Judge points out that the evidence of the defendant is entirely silent upon the manner and the terms upon which the European Mercantile Firms first established themselves. It appears that the trial Judge accepted the plaintiffs’ evidence that before Government established their offices at Sapele the Sobos gave these firms permission to settle and erect buildings on the shore in exchange for “dashes” of gin, tobacco and clothes.

It is clear that the trial Judge was satisfied that the Sobos were the original settlers on the land and had exercised exclusive rights of ownership up till the time the Government obtained a lease of the land by deed dated the 3rd December, 1908.

This deed recites that it was made “Between Chief Dore Numa of Benin River, Trader, acting for and on behalf of the Chiefs and people of Sapele (hereinafter called the lessor) of the one part “ and the Acting Governor of the Colony of Southern Nigeria of the other part. By this Deed the lessor conveyed to the Governor or his successors the land in dispute “in trust for His Majesty his heirs and successors for a term of 99 years according to the true intent and meaning of the Public Lands Ordinance 1908” at an annual rental of £100.

In paragraph 5 of the defence it is stated that “Chief Dore Numa leased the Sapele Township land in his own authority as the representative of the Olu of Itsekir who has ever been the rightful owner of the land for the Itsekirl people. In this Court the contention of the defendant has been that Chief Dore Numa executed the Deed on behalf of the chiefs and the people of Sapele who were composed of Jekkris and Sobos.

It is not disputed that Chief Dore Numa was recognised by Government as the paramount chief of the Jekkris. The trial Judge states that the plaintiffs told him that they regarded Chief Dore Nunia as their friend until certain events occurred in 1932. He was a trader and political agent who had considerable influence with the officers of the Government of that day, and when Government negotiated for a lease of this land, they authorised Chief Dore to complete the negotiations and to sign the Deed on their behalf purely as a friend. They were highly satisfied with the result and for his assistance in the matter permitted him to take each year £30 at first, and later £40 of the £100 rent given to them by Government.

The trial Judge states that “the evidence called by the plaintiffs shows that until 1932 the relation between them and Dore remained cordial, but ceased then, when Dore claimed Sapele land to be his, and ordered the Jekkris living there and around to pay no more rent to the Sobos; a claim which the defendants assert to this day, und which ultimately compelled the plaintiffs to come to this Court to rebut. Dore died in the same year, and the evidence before me is quite clear that, short of taking action in the Courts, the plaintiffs by petition and by complaint to the Local Administrative Officers of the Government, protested at the Jekkris claim to overlordship, requested that the rents should not be paid into the Olu Trust Fund, as had been done just prior and subsequently to Dore’s death, and claimed the whole rents” .

Later the trial Judge stated “The evidence before me satisfies me that when Chief Dore Numa did convey this land to Government for a term of years he did so upon the authority of the chiefs and people of Sapele, who were members of the Okpe Clan who were residing in that area, and around it, now known as the Sapele Township. If any further evidence was required to establish the truth of the plaintiffs’ allegation it is to be found in the evidence of Chief William Moore himself. He tells me that he and others petitioned in 1930 against Dore for keeping these rents himself and that is precisely what the plaintiffs intended Dore should do with the money, as they tell me, and it was exactly what he did with it” .

It has been contended that the verdict is against the weight of evidence. I am satisfied that there was ample evidence justifying the conclusions arrived at by the learned trial Judge and I see no reason for disturbing any of his findings of facts.

There is in my opinion no substance in any of the other grounds of appeal, except number 6 which reads:- “The order of Court is vague and abortive in that it has granted “title to persons who are neither identified nor identifiable and who “in any Case are not shown to be the same as the persons on whose “behalf the plaintiffs claimed.” In the last paragraph but one of his judgment the Judge stated: -

“I do grant to the plaintiffs Ayomano and Omarin, and to those “members of the Okpe Clan who are the blood descendants of the “founders of the settlement now known as Sapele lands, a declaration “of title that they are the owners of that land now commonly known “as the Sapele Township.” The plaintiffs’ claim to the declaration of title is made on behalf of themselves and the chiefs and people of the Okpe Clan.

In my opinion the declaration made by the trial Judge was wrong in form. He was clearly satisfied that the section of the Okpe Clan which created the settlement, now known as Sapele Township, became the owners thereof. Their descendants, the plaintiffs, now stand in their shoes and they ask for the declaration in the terms claimed in the writ. The defendants, who have been found to have no title or interest in the land, are not entitled to object to the form of declaration which the plaintiffs ask for as descendants of the original settlers.

In my opinion the appeal should be dismissed with costs and the judgment of the Court below maintained except as to the form of the declaration which should be in the terms claimed in the writ.

GRAHAM PAUL, C.J., SIERRA LEONE. I have had the advantage of reading the judgment which has just been delivered and I concur in it but this appeal has been argued at such exhaustive length before this Court that I feel obliged to express my own views of the arguments in more detail.

The respondents as plaintiffs in this case claimed a declaration of title to a piece of land at Sapele comprising approximately 510 acres or thereabouts commonly known as Sapele Township and described and delineated on a plan which was put in evidence at the trial. The claim was made by the respondents on behalf of themselves and the chiefs and people of Okpe Clan.

The capacity in which the defendant-appellant contests the respondents’ claim in the suit and in the appeal is a matter of more difficulty. He was sued for himself and as representing the Itsekiri people of Sapele and in paragraph 2 of his statement of defence he admitted that he was sued in that capacity. It appears however from paragraph 5 of his statement of defence that his case was that he had in regard to the land in question the same rights as the late Chief Dore Numa “who leased the Sapele “ Township land in his own authority as the representative of the “Olu of Itsekiri who has ever been the rightful owner of the “land for the Itsekiri people” .The Itsekiri people “of Sapele” are only a comparative few of the Itsekiri people and in paragraph 6 of his statement of defence the defendant says that “Chief Dore Numa as representative of the Olu the owner of the land on behalf of the Itsekiri people received yearly rent as a matter of right due to the lessor from the Nigerian Government for the said Itsekiri people of Sapele”. It was therefore left a little in doubt on the pleadings whether the defendants, claiming as he does to stand in the shoes of the late Chief Dore Numa ad hoc, was setting up a title on behalf of and as representing the whole of the ltsekiri people or only those of the Itsekiri people who are included in the description “Itsekiri people of Sapele”.

If the defendant himself had given evidence this doubt would probably have been clearly and authoritatively resolved one way or the other, but the defendant did not give evidence and we must do the best we can with the evidence of the defendant’s

witnesses. His first witness William Moore, whom the learned Judge has described in his judgment as a “self-styled historian” , said “I know the Sapele Township. It is Olu’s land. It is “part and parcel of the land in the Warri Province known as “Olu land”. Further, this witness, referring to the share of rent which Chief Dore received from this land, said “ The money “was applied for the upkeep of the Olu’s house at ado Itsekiri “and for the management of the Jekkri country in general” . (Here it may be noted that “Itsekiri” and “Jekkri” are synonymous). The evidence of William Moore therefore seems to suggest that the land in question is claimed by the defendant to belong to the Olu or his representative on behalf of the whole Jekkri people and not only on behalf of the Jekkri people of Sapele. The other witnesses for the defendant do not throw very much light on this question.

Upon that state of the pleadings and evidence counsel for the defendant in the Court below submitted at the close of the case that Chief Dore Numa’s position in regard to the land in question was as defined in the case of Omagbemi and others v. Dore Numa (5 N.L.R. 17). A reference to that case shows that Chief Dore Numa’s position in regard to all Jekkri land was that he held it as Trustee fur the whole Jekkri people.

The keystone of the defendant’s case is the lease of this land executed by the late Chief Dore Numa to the Nigerian Government in 1908. Looking to that document for assistance as to Chief Dore Numa’s capacity in dealing with this land one would have expected on the defendant’s case to find him described as acting either on behalf of the whole Jekkri people or on behalf of the Jekkri people of Sapele. But we find neither of these descriptions. He is simply described in that document as “Chief Dore Numa, Trader, acting for and on behalf of the Chiefs and people of Sapele”. From beginning to end of that document there is not a single mention of “ Jekkris” which is to my mind one of the most significant facts in the whole case. Another significant fact is that no Jekkri chief living at Sapele was called as a witness for the defendant. And there is no evidence whatever that any Jekkri of Sapele ever got a penny of the rent of this land paid under this 1908 lease.

In these circumstances I find it somewhat extraordinary that appellant’s counsel in this case appears to contend, if I understood his argument aright, that Chief Dore in granting the 1908 lease was acting for and on behalf of the mixed community (Jekkri and Sobos) of Sapele, excluding presumably the Ijaws, Yorubas, Hausas and Europeans established there.

So much for the difficulties and doubt about the capacity in which the appellant is contesting the claim of the respondent. But the respondents claim was for a declaration of title to this land on behalf of themselves and the Chiefs and people of the Okpe Clan. The Court below has given to the respondents a declaration of title to the exact terms of which I shall have occasion later to refer. It was of course for the respondents, claiming declaration of the, to prove their case and the main question in this appeal is whether the respondents discharged the onus of proof upon them in this respect.

A considerable mass of evidence was given at the trial, some of it not very relevant to the issues involved. The learned Judge dealt with the evidence in an exhaustive judgment and we have heard argument at great length in this Court from both sides. As usual in these land cases much of the evidence is traditional stories handed down orally from generation to generation, no doubt gaining or losing detail in that process, and in the process of the witnesses actually giving evidence in the case.

The respondents have given evidence that they are the proper persons duly authorised to bring this claim on behalf of the Okpe Clan. If the Okpe Clan has any rights over this land there must be some person or persons who can bring a claim in regard to it, There is no suggestion by the appellant in evidence or cross- examination that there is anyone other than the respondents who is the proper person to bring such an action as this on behalf of the Qkpe Clan. what the individual rights of the members of the Okpe Clan may be inter se in regard to this land is not in issue in this case. That is a matter for the Clan to settle among themselves if the land is Okpe Clan land. It is in my opinion established for the purposes of this case that the respondents are the proper people to bring this claim on behalf of the Okpe Clan.

As regards the traditional history the learned Judge has accept as “entirely reliable” the account given by the respondents’ witness Amuna Aparo, an old man of about eighty. I have found nothing in the record or in the arguments of appellant’s counsel to justify a decision that the learned Judge was wrong in accepting the evidence of this witness as he did. It is clear from his recorded remarks as to other witnesses that the learned Judge was throughout maintaining a critical watch on the way in which the respondents’ witnesses gave their evidence.

The evidence of this witness is supported strongly by the evidence of a completely neutral witness, the late Mr. I. T. Palmer. a Yoruba, whose distinguished career in Nigeria is well known.

The evidence of these two witnesses confirms the respondents’ traditional history and provides hard facts consistent only with the respondents’ traditional story that the original occupiers and owners of this land were the Okpe Clan and not the Jekkris.

On the other hand the evidence for the appellant is not impressive to read nor does it appear to have impressed favorably the learned ,Judge who heard it. The traditional history emanating from the “fertile brain” of the appellant’s self- styled” historian is indeed fantastic and unconvincing, and the attempt to produce actual hard facts to back up this fantastic story is not at all impressive to read. I am not surprised that the so –called “history” was not accepted by the Court below.

The activities of Chief Dore Numa were very strenuously founded upon by appellant’s counsel as supporting the appellant’s case but on careful consideration I find nothing in the activities of this Chief, fundamentally inconsistent with the respondents’ case. The key to the whole of Chief Dore’s activities is to be found in his own personal history. He was by the Government appointed their political Agent, a position of great prestige and influence which he occupied for many years. He was undoubtedly a personal power in the land. He was by Government appointed Paramount Chief of the Jekkris and President of the Native Court. He enjoyed the confidence of the local Administrative Officers. He was the head of the Jekkri people. Vis-à-vis this powerful personality the Okpe Chiefs were comparatively nonentities. All that is true but I find no solid evidence that Chief Dore Numa or any of his predecessors as Olu or representative of Olu ever because by any native process the overlord of the Okpe people or that he or his predecessors ever acquired any proprietary rights ; over land .It Sapele where neither he nor his predecessors ever lived. None of his Government appointments would give him any such proprietary rights.

Counsel for the appellant has stressed very vehemently the execution by Chief Dore of the 1908 Lease as supporting Chief Dore’s proprietary rights in this land but I was not at all impressed by this argument. A regularly paid substantial annual rent with the credit of the Government to secure it for 99 years, would naturally seem to the Okpe people in their not very sophisticated state a tremendous boon, to acquire which they might well be willing to let Chief Dore have a share of the rent as a reward for his agency and assistance in obtaining the lease. So far as the evidence shows even £60 a year was a considerable revenue for these unsophisticated people. I see no reason to differ from the learned Judge when he said “The evidence before me satisfies me that ,,"hen Chief Dore N uma did convey this land to Government for a term of years he did so upon the authority of the Chiefs and people of Sapele who were members of the Okpe Clan who were residing in that area and around it, now known as the Sapele Township” .

Appellant’s counsel made much of the argument that the District Commissioner would never accept a Deed of Lease by a mere agent without a Power of Attorney under “seal” authorising the agent to execute the Deed, All I can say in regard to that convincing argument is that after a considerable judicial experience of these land transactions in the “bush” I would  be amazed to find an experienced Administrative Officer like Mr. Douglas accepting for the Government a deed by Chief Dore as Head Chief of the Jekkris without any mention in the Deed either of the Jekkris or the Head Chieftaincy. On the other hand, a mere technical convincing flaw in regard to a Deed executed in the “ bush” does not surprise me at all.

I now come to the terms of the declaration of title which was granted by the Court below. This to my mind is the only real difficulty in the case. It seems to me that on the evidence, and on the learned Judge’s findings of fact, there is no reason why he should not have granted the declaration asked for in the writ, to the people who asked for it, namely Chief Ayomano and Chief Asan Edwin Omarin, on behalf of themselves and the Chiefs and people of Okpe Clan. There mayor may not at some time arise questions as to who is or who is not a member of the Okpe Clan which authorised the bringing of this action but these questions do not seem to me to arise in this case. The respondents have on the evidence sufficiently identified the people whom they represent under the name or the Okpe Clan with the original owners of the land in question. Their evidence that they are authorised to bring this action on behalf of the Okpe Clan was uncontradicted, unchallenged in cross-examination, and accepted by the Court below.

In my opinion the appeal should be dismissed but the judgment of the Court below should be varied so as to make the declaration given a declaration in favour of the plaintiffs. in the capacity in which they sued in other words, that the judgment should be for the plaintiffs in terms of the writ of summons. I consider that the respondents are entitled to the costs of this appeal.

KINGDON, C.J., NIGERIA. I concur with the judgments which have been delivered. To my mind the strongest indication of the weakness of the defendant- appellant’s case is the fact that he has found it necessary to alter completely, upon appeal to this Court, his contentions in regard to the all-important lease to the Government in 1908. His case in the Court below was as set out in paragraph 5 of his statement of defence.

“The defendant says that the late Chief Dore Numa leased the “Sapele Township land in his own authority as the representative “of the Olu of Itsekiri who has ever been the rightful owner of the “land for the Itsekiri people” .

That is the case which he tried, and failed, to prove. But in this Court his case was put by his counsel in these words:-

“We contend Chief Dore conveyed not as agent of plaintiffs but “as one holding the legal estate on behalf of the mixed community of “Sapele”

The two cases are not merely inconsistent, they are entirely contradictory. The first was rejected by the Court below and I can see no reason why it should be accepted in this Court. The second is disposed of by the finding of fact in the following passage from the judgment of the Court below, with which I see no reason to differ:-

“Who were the ‘Chiefs and people of Sapele’ at that time? I “have already found, as a fact, that the only persons who exercised “any authority upon the land, as chiefs prior to 1908 were Sobos and “were not Jekkris. The plaintiffs tell me that Dore conveyed to the “Government in his private capacity as their agent for this purpose. “The deed sets out ‘Chief Dore Numa of Benin River, trader, acting “for and on behalf of the chiefs and people of Sapele’.

“The evidence before me satisfies me that when Chief Dore Numa “did convey this land to Government for a term of years he did so “upon the authority of the chiefs and people of Sapele, who were “members of the Okpe Clan who were residing in that area, and “around it, now known as tile Sapele Township.” On this finding I agree that the terms of the declaration granted in the Court below should be amended to a declaration in the terms prayed by the writ.

ORDER The appeal is dismissed with costs assessed at 200 guineas. It is further ordered that in lieu of the declaration of title, granted in the Court below there be granted to the plaintiffs, as they are described in the writ, a declaration of title to all that piece or parcel of land situate at Sapele comprising approximately 510 acres or thereabouts commonly known as Sapele Township to the Western bank of the Ethiopia River on the East by the Southern bank of the Benin river and more particularly described and delineated on a plan marked as Ex. 1 in this case, which plan shall be attached to and form part of the grant.