CHIKERE V. OKEGBE (2000)

Background

This appeal arose from two land actions commenced in the Orlu Judicial Division of the High Court of Imo State and later consolidated. In the first action, George Okegbe and other members of the Okwu kindred of Umuokpo claimed a declaration of customary right of occupancy, damages for trespass, possession and injunction over land known as Uhu Okwara Ohonaobi. The defendants, members of the Umuodudu or Olori kindred, filed a separate action claiming title to the same land, which became the cross-action after consolidation.

The respondents’ case was that their ancestors owned the land and had, at different times, granted portions of it individually to the ancestors of the appellants. The grants were said to have been made under customary tenancy arrangements, involving obligations such as service to the grantors on market days, presentation of customary gifts and good conduct. The appellants denied that they were customary tenants and asserted that they derived title through a common ancestor. They also relied on their long possession of the land.

After hearing the evidence and visiting the locus in quo, the trial judge found that the appellants’ ancestors had been granted portions of the land by the respondents’ ancestors and were therefore customary tenants. The appellants’ cross-action for a declaration of title was dismissed. The respondents’ representative action was, however, non-suited on the ground that the grants had been made individually rather than communally, making the representative action improperly constituted. The Court of Appeal dismissed the appellants’ appeal and affirmed the orders. The appellants appealed to the Supreme Court.

Issues

1. Whether the lower courts properly inferred from the established facts that the appellants occupied the land as customary tenants under grants made by the respondents’ ancestors.
2. Whether the appellants’ possession could support their claim to title despite the finding of customary tenancy.
3. Whether dismissal of the appellants’ cross-action deprived them of their customary tenancy and possession.
4. Whether an order of non-suit was appropriate where the respondents’ action was incompetent because the plaintiffs lacked the necessary standing or representative capacity.
5. Whether the Supreme Court could correct the order of non-suit even though the respondents had not appealed against it.

Ratio Decidendi

The Supreme Court unanimously dismissed the appeal. It held that the concurrent findings of the trial court and the Court of Appeal—that the appellants were customary tenants—were supported by the evidence and had not been shown to be perverse or unreasonable. Applying the principle in Kojo II v. Bonsie, the court explained that where competing traditional histories exist, the court may determine which history is more probable by reference to established facts and surrounding circumstances. Such an inference is rebuttable, but an appellate court will not interfere where there is no effective evidence rebutting it.

The court further held that a grant under customary law gives the customary tenant a right to possession. Possession by a customary tenant is not adverse to the overlord and does not, without more, establish ownership in the tenant. The tenant’s right to possession may be forfeited only by conduct inconsistent with the overlord’s title, such as denial of the overlord’s title, abandonment or an attempt to alienate the land. Therefore, the dismissal of the appellants’ claim to ownership did not by itself amount to eviction or forfeiture of their customary tenancy.

Court Findings

The Supreme Court accepted the candid admission made by counsel for the appellants that the land had been granted to the appellants’ ancestors as customary tenants. An unequivocal admission by counsel on a material fact is binding on the client, and the court is entitled to act upon it. The admission reinforced the factual inference already drawn by the two lower courts.

The court criticised the respondents’ brief for presenting arguments under a single, rambling heading without clearly identifying which issues were being addressed. Appellate briefs must be clear, concise and intelligible, and each issue for determination should be distinctly argued.

On the procedural question, the court distinguished a non-suit from a striking-out order. A non-suit is appropriate where a plaintiff has failed to prove the case on that occasion but fairness permits a second opportunity to litigate. It is inappropriate where the action is incompetent from the outset because the plaintiffs lack locus standi or the representative action is improperly constituted. The proper order was therefore to strike out the respondents’ action.

Although the respondents had not appealed against the non-suit, the Supreme Court relied on Order 8 rules 2 and 5 of the Supreme Court Rules and section 22 of the Supreme Court Act, 1960, to correct the erroneous order. The Court of Appeal also possessed power under Order 3 rule 23(1) and (2) of the Court of Appeal Rules 1981 to make the order required by the circumstances. The court rejected the argument that the error could be corrected under the slip rule as an error of counsel. The slip rule corrects a mistake in the court’s order that fails to express the court’s intention; it does not correct an erroneous submission or concession by counsel.

Conclusion

The appeal was dismissed, with costs of N10,000 awarded to the respondents. The dismissal of the appellants’ cross-action was upheld. However, the order non-suiting the respondents was set aside and replaced with an order striking out their action, because the action had been improperly instituted in a representative capacity.

Significance

This decision is important in Nigerian land law and civil procedure. It confirms that long possession does not necessarily establish title where the evidence shows that possession began by customary grant. It also protects the continued possessory rights of customary tenants, while preserving the overlord’s reversionary interest. Procedurally, the case demonstrates that appellate courts may correct an inappropriate consequential order to ensure that the real controversy is properly determined, even where the relevant order was not directly challenged. Finally, it emphasises the binding nature of counsel’s clear admissions, the limits of the slip rule, the need for disciplined appellate advocacy and the reluctance of the Supreme Court to disturb concurrent findings of fact.