Obidinaka Ejeanalonye & Ors. V. Ikpendu Omabuike & Ors. (1974)
LawGlobal-Hub Lead Judgment Report
ELIAS, C.J.N.
In suit No. 0/168/1971 Agbakoba J. on May 8, 1973 gave judgment in the Onitsha High Court in favour of the plaintiffs against the defendants ordering the latter to pay nominal damages for trespass in respect of the plaintiffs’ land and an injunction restraining the defendants from committing further acts of trespass. The Plaintiffs’ claim is as follows:
“1. The Plaintiffs and the Defendants reside at Okija within the jurisdiction of the Court.
- The Plaintiffs sue for themselves and on behalf of all the members of Umuoma family Ubahueze-Ihite Okija.
- The Plaintiffs are in possession of all that piece or parcel of land situate at Okija within the Onitsha Judicial Division known as and called “OLIEHI”. The said “OLIEHI” land goes as far as the “IHUOSE” river “AGBO-UTU”, “ONU” river, “AGBO-OGWU” and “AGBO-AGU”.
- On or about the 15th day of October, 1971 the defendants, their servants and agents trespassed into the said “OLIEHI” land, shared out portion of the land amongst themselves and started brushing the land for farming.
- The defendants, despite repeated warnings, intend to continue the said acts of trespass.
- WHEREFORE the Plaintiffs claim against the defendants jointly and severally as follows:
(a) 300pounds (Three hundred pounds) damages for trespassing into the said “OLIEHI” land.
(b) Perpetual injunction restraining the defendant, their servants and agents from further acts of trespass.”
The Plaintiffs sued for themselves and on behalf of the members of the Umuoma family of Ubahueze Ihite against 10 Defendants who were sued in their individual capacities. In their statement of claim the plaintiffs averred that the land in dispute is situate at Okija and is more particularly delineated and edged pink in the survey plan No. EC210/71 and forms part of a larger piece of land belonging to the Osuche people from time immemorial.
The land was several hundreds of years ago granted to their ancestors as customary tenants and they (plaintiffs) and their predecessors have been paying annual tribute to their Osuche landlords according to customary law. They also averred that they have been in exclusive possession of the land in dispute, have been farming on it, taken on subtenants and duly paid their tributes to the Osuche family until they were disturbed by the defendants who broke into and entered the land in dispute, began to “brush” it and planted cassava, despite warning from the family head of the landlords.
The defendants, for their part, averred that the land in dispute is called “Abada Olianyanwu” and not “Oliehi” as alleged by the plaintiffs, and that the land is more particularly delineated and edged pink in their survey plan No. MEC/106/72; they further averred that the land in dispute had been in their peaceful possession from time immemorial since it was given to their ancestors by the Osuche people. They further alleged that they had been farming the land and that the people of Osuche granted them plaintiffs a piece of land adjacent to theirs. They denied that they had trespassed upon the plaintiffs land and averred that the plaintiffs began to encroach upon the land of the defendants in 1969.
It is thus clear that the question is not one of declaration of title to the land, and that both the plaintiffs and defendants claim they were put in possession by the same Osuche family. The real question is to determine whether the plaintiffs or the defendants had the legal possession granted to them by the Osuche owners. Counsel for both sides agreed that each should call two witnesses, one of whom should be a representative of the plaintiffs while the defendants should be represented by another; and that Okpala head of the Osuche family) and another representative of the family should be called by the part claiming to have obtained possession from that family. John Agaba (P.W.1) the current head of the Osuche family deposed as follows:
“Osuche did not give land to the defendants in that neighbourhood. Osuche people gave some land to the defendants near the land in dispute. The defendants paid 100 (N200) for one year for the land for farming. Defendants entered the land given to plaintiffs. Plaintiffs reported to Osuche people and we went and warned the defendants from going upon the land our ancestors gave to the Plaintiffs. Defendants did not stop and hence plaintiffs reported to Police and later sued. Police invited Osuche to Ihiala and I went to represent Osuche people. Defendants were there. I told the Police Osuche people had warned defendants and that Osuche people were prepared to given them another piece of land since they had paid 100 (N200) for a piece of land to farm. Police advised the defendants to take our advice. He showed the defendants a piece of land to farm. Defendants liked the piece of land. It is not this portion of land that we showed the defendants. Defendants paid 100 (N200) to farm the land for one year. Apart from the land we gave them to farm for one year, there is no other piece of land given to them by Osuche people.”
He further testified thus:
“The defendants are still farming on the land we gave them. The land is near to one we gave to the plaintiffs. The land lies between two streams. Defendants pay rent; they do not pay homage to us. When we showed defendants the land, they brought a goat. Goat is not part of rent. ”
The first plaintiff also emphasized in his evidence that their “ancestors pay homage and land tribute to Osuche with cows and a goat, palm wine and kola nuts … our ancestors and ourselves farm on the land. We gave out portions to tenants including the defendants. At the end of the war we went to the land in dispute and found the defendants farming on the land. We told them the land belongs to us and they refused and so we reported to the Okpala of Osuche”.
He further stated:
“The portion of the land belonging to Obaheze people but given by Osuche people to the defendants in order to appease them is more fertile than the land in dispute”.
The defendants called one Anene Otogbolu (D.W.1) who testified on their behalf as a representative of the Osuche family. This witness said that he used to deputise for the late Okpala because the latter’s son was too young, and that in the capacity of a deputy, he used to run errands for the late Okpala. His main testimony was that the defendants were granted land by the Osuche family, a story corroborated by the first defendant in his evidence. The learned trial judge, after observing the parties and their witnesses and also after hearing evidence from an independent police witness called by the court, found as follows:
(a) “That it was P.W.1 who in the absence of the head of the family acted and spoke for Osuche people”.
(b) “It follows that I have to accept his evidence that the land he indicated at the site was the land Osuche people granted to the plaintiffs”.
(c) “I have earlier accepted the evidence of P.W.1, John Agaba, and found that this is not the land granted to the defendants by Osuche people. I have also found that this land was granted to the plaintiffs also on the evidence of P.W.1” and
(d) “The defendants might have honestly believed that this was the land granted to them and upon that honest belief went upon the land and cultivated it with cassava and other food crops. An honest but mistaken belief is not a defence to an action for damages in trespass. The defendants are therefore liable for damages in trespass to the plaintiffs.”
The learned trial judge thereupon gave judgement for the plaintiffs by awarding nominal damages of a total of N50 for trespass and granted an injunction against the defendants.
The present appeal has been brought against that judgment on a total of some 8 original and 7 additional grounds, most of which were vague or based mainly on allegations of facts. The main argument of counsel for the appellants would seem to be that the learned trial judge erred in law when he ordered that:
“The ten defendants, their servants and agents are hereby restrained and forbidden from going upon the land, the boundaries of which are shown by reference to Ex. A or Ex. B and therein called Oliehi or Abada Olianyanwu respectively”.
We think that there is substance in this complaint and that the learned trial judge should have confirmed the injunction, which he rightly granted, to the area of land in dispute as delineated in Ex. A alone. This was the parcel of land which was identified by all the parties to the case as the one in dispute and which the learned trial judge so found.
It is interesting to observe that this case illustrates clearly the distinction drawn by customary law between the grantees of land as customary tenants, which the plaintiffs were (of the disputed land), and grantees of land under a traditional form of ”lease”, which the defendants obviously were (of a different parcel of land). The customary tenant pays tribute and enjoys perpetuity of tenure subject to good behaviour, which means in practice that he may forfeit his holding only as a result of an order of court for forfeiture at the instance of the customary landlords. The customary lessee, on the other hand, is granted land for a consideration such as the payment of N200 by the defendants in this case to the Osuche family as their landlords on a yearly tenancy. It is to be noted that, as pointed out by P.W.1, the giving of any form of present does not form part of the rent for a customary lease. It will be recalled that P.W.1 testified as follows:
“Defendants pay rent; they do not pay homage to us. When we showed the defendants the land, they brought a goat. Goat is not part of the rent.”
Finally, a further note may be taken of the distinction between the two forms of land-holding in the following passage in the judgment appealed against.:
“The result of the injunction is that the plaintiffs, not the defendants, would harvest the cassava and other food crops planted on the land by the defendants. I am also influenced in awarding nominal damages by a consideration that the crops accrue to the plaintiffs.”
This is only a consequential order spelling out the implications of the plaintiffs being declared the customary tenants of the land in dispute. It also illustrates the application by the judge of the principle of quic quid plantatur solo, solo cedit to the rights of the customary tenants.
The appeal, therefore, fails and is hereby dismissed, except in so far as the ambit of the injunction is to be limited to the area delineated in Ex. A. The judgment of Agbakoba J. in Suit No. 0/168/1971 on May 8, 1973 is hereby confirned, including the order as to costs. We award costs to the respondents in this appeal, which we assess at N64.
Other Citation: (1974) LCN/1955(SC)
