Okolie Okolo & Ors v. Sammy Onwuegbuzia Nnwamu & Ors (1973)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C. 

The plaintiffs have appealed against the judgment of Arthur Prest, J. (High Court, Agbor, Mid-Western State) by which he had dismissed with costs their claims for a declaration of title to certain lands in the State; damages for trespass to the lands and an injunction. The plaintiffs are representatives of the people of Umuoje Quarters of Asaba and had taken out the action in such representative capacity “for themselves and on behalf of the people of Umuoje, Asaba”.

The defendants, who are the respondents before us, are representatives of the people of Umuda Quarters of Asaba and were sued and are defending this action in such representative capacity “for themselves and on behalf of the people of Umuda, Asaba”. The subject matter of the dispute is land which the plaintiffs call Ilo-Ugwule but which the defendants call Odogwu-Apiti and Abo land.

The pleadings of the parties aver that both the plaintiffs and the defendants have descended from a common progenitor Oneh, that both parties claim the land in dispute as being within the boundaries separating their lands from each other and that both parties claim to have exercised ownership and possession rights over the said lands and had given, fought and won some more cases in protection of their rights as owners and in vindication of those rights. The defendants then counter-claimed for :-

“(a) Declaration of title to the land known as “ODOGWU APITI” as shown in the defendants’plan No. MWC/36/66.

(b) Injunction restraining the plaintiffs, their servants or agents from entering or interfering whatsoever with the land.

(c) 300pounds damages for trespass on the said land.”

At the trial, the plaintiffs produced their own plan of the land in dispute, No. M/GA38/66 and this was admitted in evidence as Exhibit P1. In the same way, the defendants produced their plan of the land claimed by them and this was admitted in evidence as Exhibit D1. The 1st and the 4th plaintiffs called a total of five witnesses. The 3rd defendant also gave evidence for the defence and a total of eleven witnesses testified on behalf of the defence.
The plaintiffs’ surveyor, George Obianwu, was asked in court to superimpose the plans of the parties one on top of the other and the resulting composite was admitted in evidence as Exhibit D2, in which the “superimposed area on the defendants’ plan is edged black”. In the course of his judgment, the learned trial Judge meticulously reviewed the evidence of the parties and then directed himself thus:-

“The kernel of this whole case appears to me hinged on who owns the lands on the northern boundary of the land in dispute edged BLUE in the defendants’ plan. See superimposed plan Exhibit “D2”. If the plaintiffs are the owners of these lands then they are obviously the owners of the surrounding land as shown on their plan Exhibit “P1″. If not, then it is evident that the defendants northern boundary of the land in dispute is the true boundary and the plaintiffs’ southern boundary is a fictitious one.”

The learned trial Judge then found and held on the evidence accepted by him that, with the exception of some small portions, the lands on the northern boundary of the land in dispute belong to the tenants of the defendants in that they have always farmed those portions of the defendants’ land known as Odogwu-Apiti being the portions of the defendants’ land which at one time or the other the defendants had granted to the ancestors of the present occupiers who are kinsmen of the plaintiffs. The learned trial Judge concluded therefore that the northern boundary of the land claimed by the plaintiffs as their own and in respect of which they were seeking a declaration of title, was not proved. With regard to the southern boundary of the land claimed by the plaintiffs, the learned trial Judge observed:-

“I am not impressed also with their southern boundary which, as I have said, would appear to be an arbitrary boundary created for the purpose of this litigation which has been going on since 1959. That being so, the plaintiffs claim for declaration of title must fail.”

He eventually dismissed the claim for declaration of title as well as those for damages for trespass and a perpetual injunction.

After this, the learned trial Judge then directed his attention to the counter-claim of the defendants. His observation on this are partly as follows :-

“With regard to the claim of the defendant, as I have said the defendants have not laid claim to the land edged BLUE on their plan Exhibit “D1”, which the plaintiffs claimed as part of their land. On the other hand, the plaintiffs have in effect conceded that the southern part of the land claimed by the defendants does not belong to the plaintiffs. That being so, and having held that the plaintiffs are not the owners of the land claimed by them on the northern boundary of the land in dispute, I think the defendants are entitled to a declaration of title to the land shown on their plan Exhibit “D1″.

Again the defendants have not produced an iota of evidence in support of their claim for damages for trespass and injunction. On the contrary they have conceded by their evidence that the land on which the 4th plaintiff planted his rubber was given to him by the defendants. They have not satisfied me that the 4th plaintiff has committed any breach of his occupation to entitle the defendants to forfeiture, nor have they asked for one. Their claim for trespass and injunction is therefore dismissed.”

Thus, the learned trial Judge granted to the defendants a declaration of title to the land they claimed on their plan Exhibit D1 but refused and dismissed their claims for damages for trespass and injunction.

As stated before, this appeal is by the plaintiffs and it is against that judgment. The argument on appeal is directed firstly against the findings of fact of the learned trial Judge against the plaintiffs on their substantive claims and, secondly, against the award of declaration of title in favour of the defendants. In respect of the first limb of the appeal, it was argued in effect that the findings of the learned trial Judge were not supported by the evidence and that he misconceived the real issues to be decided.
We cannot of course accept that contention. The plaintiffs claimed a declaration of title and it is for them to prove the boundaries of the land which they claimed as their own. In their plan Exhibit P1, the plaintiffs called their lands Ilo-Ugwule and edged it in pink. When the plan was superimposed on the defendants’ plan it was found that a large portion of the land claimed by them fell within the northern half of the lands claimed by the defendants, whereas paragraph 5 of the plaintiffs’ statement of claim avers as follows:

“From time immemorial the plaintiffs and the defendants with all their larger family or Umuonihe have always maintained and respected their traditional and natural boundary running up to the plaintiffs’ boundary with Ibusa. Umuonihe people are on one side and the plaintiffs on the other side.”

Thus, the plans, especially the composite plan Exhibit D2, clearly show that there is an issue with respect to the plaintiffs’ southern boundary which they ought to resolve. The learned trial Judge stated that he was not impressed by the testimony of the witnesses called by them to support this boundary. Concerning their northern boundary and as found by the learned trial Judge, the composite plan shows that this northern boundary of the land which the plaintiffs had claimed, corresponded approximately with the northern boundary of the land claimed by the defendants in their plan Exhibit D2. The learned trial Judge concluded and this is justified in our view by the plethora of evidence before him, that their northern frontiers were in the possession of persons belonging to the family stock of the plaintiffs but demonstrated by the defendants to have been put in possession by them (i.e. the defendants) and that the lands they occupy are but portions of the defendants’ lands. Their holdings in the northern portion of the lands claimed by the defendants are clearly shown and edged blue on the defendants’ plan Exhibit D1 and claimed by the defendants as part of their lands Odogwu-Apiti and Abo land. If that is so, as indeed it was, then the plaintiffs had failed to prove the northern boundaries of the lands which they claimed to own and to possess.
We think that the learned trial Judge was entitled to conclude, as he did, that the plaintiffs did not prove their claim to a declaration of title.

Learned counsel for the plaintiffs also argued before us that the learned trial Judge should have non-suited the defendants on their counter-claim because :-

(i) they did not prove their own boundaries; and

(ii) although they amended paragraph 4 of their particulars of claim to include Abo land stated in their counter-claim, they did not amend paragraph 10 of their Statement of Defence and so did not otherwise specifically claim a declaration of title to Abo land which the judge granted them.

On the other hand, learned counsel for the defendants submitted that the defendants had proved the boundaries of the lands they claimed by credible evidence which was accepted by the learned trial judge and that in any case the amendment fairly covered the subject-matter of the dispute. The plaintiffs, learned counsel submitted, did not at any time dispute the southern boundaries of the lands claimed by the defendants in Exhibit D1. Their surveyor gave evidence of it and the 4th defendant also described it. The learned trial Judge, as he was entitled to do, accepted their evidence and it must follow that the southern boundaries of the defendants had been duly proved. With respect to their northern boundary, we have already referred to the northern blue area in the plan Exhibit D1. The defendants proved their claims and entitlement to this area. They pleaded the blue area in their Statement of Defence as part of their Odogwu-Apiti and Abo lands and proved to the satisfaction of the learned trial Judge that the occupiers of those lands were members of the plaintiffs’ family who “were either put in possession by the defendants’ family or by the defendants’ customary tenants”. We think that the learned trial Judge rightly concluded that the defendants in respect of the boundaries of their lands had proved their entitlements and were entitled to the declaration of title which they sought and obtained.

Furthermore, it was argued on behalf of the plaintiffs that the learned trial Judge should have non-suited the defendants on their claims for a declaration of title because whilst they amended the relevant part of their Statement of Defence to extend their claims to what they described as Abo land on their plan Exhibit D 1, they did not amend paragraph 10 of their Statement of Defence which sets out the particulars of their counter-claim. It was then submitted by learned counsel for the plaintiffs that the defendants could only get judgment for what they claimed and no more.

Paragraph 4 of the Statement of Defence as amended reads as follows:-

“4. The defendants deny paragraph 4 of the  statement of claim and will put the plaintiffs to the strictest proof of all the material allegations contained in the said paragraph. In further reply to paragraph 4 of the Statement of Claim the defendants state that the land in dispute situate at Ofia Umuda and is known and called “ODOGWU APITI” and “ABO LAND”. These two parcels of land are the property of Umuda people and the defendants will rely on the declaration made by Umuaji people dated 23/5/56 and suit No.42/57. The defendants will file plan No. MWC/36/66 with the statement of defence which will show the area in dispute.”

The application to amend the Statement of Defence was made after the close of the plaintiffs’ case but the learned trial Judge nonetheless granted the application. The plans Exhibit D1 and Exhibit D2 show that what the defendants call Abo land is indeed as edged pink in their plan and described as the land in dispute by them in their pleadings. The plaintiffs’ plan Exhibit P1 shows within the area in dispute and edged pink that the relevant portions of Abo land is also in dispute. The amendment to paragraph 4 of the Statement of Defence shows that Abo land is also in dispute and that Abo land as well is the property of the defendants. In his judgment, the learned trial Judge granted a declaration of title in respect of the land edged pink in Exhibit D1 and stated, as it rightly is, that the pink area covers the areas of Odogwu-Apiti and Abo land. The evidence of the plaintiffs and their witnesses covers the pink area in Exhibit P1: this of necessity includes the land called by the defendants Abo land. The pleadings and the evidence of the defendants and their witnesses cover Abo land. It is not disputed that the judgment of the learned trial Judge throughout assumes the inclusion of Abo land in the counter-claim of the defendants.

In these circumstances we cannot see any justification for any party in quarrelling with an order for declaration of title to Abo land and the plaintiffs need suffer no prejudice by such inclusion either by the judgment itself or by way of amendment to the counter-claim on which the judgment was based. We will therefore exercise our powers under Section 22 of the Supreme Court Act and amend the counter-claim accordingly to include Abo land within the lands in respect of which the defendants had sought and won the declaration of title.

This disposes of all the points raised and argued on appeal before us in favour of the plaintiffs. All the grounds of appeal fail and the appeal is hereby dismissed. The appellants, i.e. the plaintiffs, will pay to the respondents the costs of this appeal fixed at 107 Naira.

SC.168/70