Kosun Epi & Anor Vs Johnny Aigbedion (1972)

LawGlobal-Hub Lead Judgment Report

A. FATAYI-WILLIAMS, JSC.

In the High Court, Ubiaja, in the Mid-Western State, the plaintiff had instituted an action against the present appellants who were the defendants claiming, according to the endorsement in his writ of summons:-

“1. A declaration of title to a piece or parcel of land in Ivbore of Irrua town within the Ubiaja Judicial Division situate and lying between the landed property of the plaintiff and one Okhae Okoh all of Ivbore which said piece of land shall be properly described and delineated in ‘PINK’ on a plan to be filed later in these proceedings.

“2. £100 damages for trespass in that on or about the month of November, 1966, the defendants broke into and entered the said piece of land in peaceable possession of the plaintiff and without his consent or authority cleared the said piece of land, cut down a number of economic crops, the property of the plaintiff, moulded and packed cement blocks on the land with a view to setting up a building on it.

3. An injunction to restrain the defendants, their servants, agents or privies from entering upon the said land or dealing with it in any manner inconsistent with the plaintiff’s exclusive right of ownership.

According to his statement of claim and the evidence adduced in support, the land in dispute originally belonged to the plaintiff’s grandfather named Ikhine, who “deforested” it many years ago. Ikhine built and farmed on the land and also planted some economic trees there. On his death, the plaintiff’s father Aigbedion, inherited the land. He also lived on and planted more economic trees. Both Ikhine and Aigbedion were never disturbed by anybody while in occupation of the land. On the death of Aigbedion, the plaintiff inherited the land and has since lived there and maintained the economic trees. He also built a house on the very spot where his forefather had lived.

The plaintiff’s grandfather (Ikhine), out of compassion, gave one Epi who had come from Obiabi Quarters of Ivbore a portion of his land to settle and Epi built and lived with his children on this portion. This land given to Epi is about one mile from where plaintiff’s grandfather lived. After the death of Epi, some of his children returned to the original quarter of Obiabi while others stayed on. In 1966, the two defendants who are both children of Epi, went outside the portion of land granted to their late father, entered the plaintiff’s portion now in dispute and built on it after destroying some of the economic trees on the land. The plaintiff then reported the defendants to the village elders who, after inspecting the land, ordered the defendants to quit it but they paid no heed to this order and went on with their buildings which they had since completed.

The defendants denied the allegation that they went on the land of the plaintiff, built upon it, and destroyed some of the economic trees there. They testified that they had always occupied the same site occupied by their father. The 1st defendant explained further that there was nothing to mark the boundary between their father’s land and that of the plaintiff. As for the 2nd defendant, he claimed that he was born on the land and that he has never left it. He further testified that his present building on the land was his third one there, the previous two having been demolished by him in order to build a better one. Finally, he said until the plaintiff decided to challenge their title, nobody had ever disturbed them on the land.

One of the witnesses called by the defendants was Chief lsidahomen, the Onogie of Irrua (1st D.W). He testified that he had been the Onogie since 1941 and that he had known the defendants to have lived on the same spot since he was a boy. Under cross-examination, this witness testified further as follows:-

“I knew the late Epi when I was young; I knew his house at Ivbore though Epi had his house in Uwelirue Quarter. The defendants now live on the very spot where their late father lived. The late Epi’s house was a mud building with a thatch roof. The house has since been rebuilt by the defendants. The present house has been roofed with corrugated iron sheets. I did not know when the house was rebuilt. I last visited Ivbore in 1969. The two defendants have separate houses but in the same place.”

After reviewing all the evidence adduced before him, the learned trial Judge observed:-

“From all the evidence in this case I do not believe that the late Epi lived as far away as one mile from the plaintiff’s father or grandfather. The evidence of Bernard Onoromuaigbe, the plaintiff’s 5th witness, fortifies me in this belief. The point to be resolved therefore is whether the land on which the defendants’ buildings stand was part of the area occupied by their father Epi, or part of the plaintiff’s father’s land. What was the boundary demarcating the land given by the plaintiff’s grandfather to the late Epi from the land occupied by the plaintiff’s grandfather himself? The plaintiff must prove that he is entitled to recover the land as against the person in possession.”

The learned trial Judge, after dealing with the law as to what a plaintiff must prove in order to succeed in an action for declaration of title, then proceeded to answer the questions which he had asked himself as follows:-

“The evidence of the two defendants, as supported by the evidence of the 5th witness for the plaintiffs, Bernard Onoromuaigbe, showed that the plaintiff’s family and the defendant’s family did not live too far apart. In his plan, Exhibit A, the plaintiff did not indicate the owner of the land to the east of the road from Uwelirue quarter which he admitted was not in dispute. Equally too, the defendants have not bothered to file any plan at all to show what they regarded as the boundary of the plaintiff’s land. In one breath the defendants claimed the economic trees as shown in Exhibit A; in another breath they admitted that the area was Afokhuaria land. The plaintiff’s case, however, has not been conclusive as to who owned the land in between himself and the defendants; or rather, as to the exact boundary as between himself and the defendants. I am not satisfied that the defendants’ buildings were as recent as the plaintiff made them out to be.”

Notwithstanding the above observation, however, the learned trial Judge gave judgment for the plaintiff with respect to the first leg of his claim as follows-

“There will be judgment for the plaintiff for title to the area verged pink on Exhibit A, excluding, as they now exist, the premises with appurtenances of the defendants’ three buildings.”

He also observed that: –

“Not to give the plaintiff any judgment at all will be most inequitable.”

Although he dismissed the plaintiff’s claim for trespass, he, nevertheless, granted the injunction asked for.

In the appeal now before us against that judgment, the main complaint of Mr. Sadoh, who appeared for the defendants/ appellants, put briefly, is this: since the learned trial Judge himself had stated in clear terms that the plaintiff/respondent’s case had not been conclusive as to the exact boundary between his (plaintiff’s) land and that of the defendants/appellants, the only conclusion which he could have arrived at, having regard to all the circumstances, was that the plaintiff has failed to prove the boundaries of the land he is claiming and could not, therefore, have succeeded in the claim for declaration of title. If his claims for both title and trespass were not well founded, his ancillary claim for an injunction should also have been refused.

Mr. Akere, for the plaintiff/respondent, found it difficult to support the judgment. With commendable candour, he admitted that he himself was not happy about the judgment and asked us to non-suit the plaintiff/respondent.

In reply, Mr. Sadoh pointed out that since the plaintiff/respondent by failing to prove the boundaries of the land in dispute, had failed to prove his claim, the only order which the learned trial Judge could have made and which he asked us to make, was to dismiss the plaintiff/respondent’s claim in its entirety. It must be remembered that the plaintiff/respondent’s evidence that his own grandfather gave the defendants/appellants’ father (Epi) a portion of land about one mile away from where he (his grandfather) lived was not believed by the learned trial Judge. Therefore, the location of the land given to Epi vis-a-vis that of the remaining land of the plaintiff/respondent’s ancestor is crucial to the determination of the boundaries of the land in dispute. No doubt, that was why the learned trial Judge found the evidence as to the boundary inconclusive.

The first duty of a plaintiff who comes to court to claim a declaration of title is to show the court clearly the area of land to which his claim relates (see Akinolu Baruwa v. Ogunshola & Ors. 4 WACA 159). It is also trite law that before a declaration of title is granted, the land to which it relates must be identified with certainty. (See Udofia v. Afia 6 WACA 216 and Kwadzo v. Adjei 10 WACA 274). If it is not so ascertained, such as in the case in hand, the claim must fail and it must be dismissed. (See Oluwi v. Eniola (1967) NMLR. p. 339.

In the instant case, as we had pointed out earlier, the learned trial Judge had found that the boundary between the plaintiff/respondent’s undisputed land and the portion which he (the plaintiff/respondent) admitted that his ancestors had given to the defendants /appellants’ father was inconclusive. In other words, the plaintiff/respondent had not proved the boundaries of the disputed area which would appear from the survey plan (Ex. “A”) to lie between these two pieces of land. That being the case, the claim for declaration of title to the disputed land should have been refused. Moreover, while a claim for an injunction is not necessarily bound to fail after a claim for declaration of title fails, it must do so where, as in this case, the boundaries of the land in respect of which an injunction is sought are not clearly defined (See Oluwi v. Eniola supra).

Learned counsel for the plaintiff/respondent had asked us to non-suit him. We must point out, however, that where a plaintiff in an action for declaration of title fails, as in the case in hand, to prove the boundaries of the land he is claiming, he has failed, by that omission, to prove his case; the proper order which the court should make in such circumstances is usually one of dismissal of the claim. ( Kodilinye v. Odu (1935) 2 WACA 336; Dawodu v. Gomez (1947) 12 WACA 151; and Edam & Ors. v. Orie & Ors FSC 54/1962 delivered on 21/3/63.

For the above reasons, the appeal succeeds and it is allowed. The judgment of Aghogbhovbia, J., in Suit No. U/30/66 delivered in the High Court, Ubiaja, on 18th July, 1969, including the order as to costs, is accordingly set aside. On this point, we observed, however, in Ayodele v. Olumide SC. 260/67 delivered on 23rd May, 1963, as follows:-

“There may be circumstances, however, where it is in the interest of justice to make an order of non-suit instead of dismissal. It is, for that reason, impossible to lay down any hard and fast rule as to the circumstances in which a non-suit, as opposed to a dismissal, should be ordered and it is most undesirable that in this respect the discretion of the court should be fettered or circumscribed.”

In the instant case, the learned trial Judge did find that the plaintiff/respondent owned part of the land in dispute. What he found inconclusive was the limit of that land in relation to the portion which the plaintiff/respondent’s ancestors gave to the defendants’ father in the area. That was why, it seems to me, the learned trial Judge decided, in his judgment, to excise for the defendants/appellants an undefined portion out of the land which he has granted to the plaintiff/respondent. In this instance, therefore, we think it will be unjust to dismiss the plaintiff’s claim in its entirety, thereby making him lose forever the undefined portion over which he clearly has a claim. Having regard to the particular circumstances of this case, we think an order of non-suit would meet the justice of the case.

The plaintiff/respondent is therefore non-suited with costs assessed at fifty guineas and this shall be the judgment of the court. The defendants/appellants are also awarded the costs of this appeal which we assess at 100 guineas.

Other Citation: (1972) LCN/1383(SC)