Anyaele Chukwueke & Anor. V. Okorie Okoronkwo & Ors. (1999)

LAWGLOBAL HUB Lead Judgment Report

L. KUTIGI, J.S.C

The plaintiffs sued the defendants claiming N10,000.00 being special and general damages for trespass to a piece of land known and called “Akwakwa”, situate at Alayi in the Umuahia Judicial Division. They also claimed an order of perpetual injunction against the defendants.

Pleadings were ordered, filed and exchanged. At the trial evidence was led on both sides. A number of documentary evidence were also tendered. It is not disputed that both the plaintiffs and the defendants hail from the same village Amakalu Alayi, albeit from different families. Parties are also agreed that while the plaintiffs call the land in dispute as “Akwakwa”, the defendants refer to it as “Aja ‘Oji” land. Both sides pleaded and relied on previous courts judgments over the land in dispute.

At the end of the trial the learned trial Judge in a reserved judgment found for the plaintiffs on all their heads of claims. He concluded his judgment thus –

“From the totality of evidence before me and after considering the submissions of the learned counsel on both sides and the authorities cited. I am satisfied that the plaintiffs have proved their case. There will therefore be judgment for the plaintiffs for N9,550.00 being special damages for trespass and N350 being general damages for trespass, bringing the total to N9,900.00. I also make an order of perpetual injunction restraining the defendants, their servants and agents from entering the said land or interfering with or continuing to trespass on the said land.”

A perusal of the judgment shows that the learned trial Judge based his judgment on the judgment in a previous suit No. 129/58 where the Alayi Native Court made a declaration in favour of the plaintiffs, as per Exhibit A in the proceedings. The appeal against the Native Court’s judgment was struck out (see Exhibit B).

Dissatisfied with the judgment of the High Court, the defendants appealed to the Court of Appeal holden at Port-Harcourt. In a unanimous judgment, the Court of Appeal allowed the appeal. The judgment of the High Court was set aside and in its place a verdict of dismissal of the plaintiffs’ case was substituted. Going through the judgment it is clear that the Court of Appeal simply allowed the appeal because it was of the view that there was no evidence to show that the land in dispute in the case now on appeal was the same land over which judgment was entered in favour of the plaintiffs in Alayi Native Court, and that therefore the plaintiffs failed to prove exclusive possession of the land in dispute to ground trespass.

Aggrieved by the decision of the Court of Appeal, the plaintiffs have appealed to this court. Parties filed and exchanged briefs of argument which were adopted at the hearing and during which time oral submission were also made. Chief Williams, SAN, learned counsel for the plaintiffs has in his brief submitted two issues for determination thus –

“(i) Whether the Court of Appeal was right when it held that there was no evidence before the court to show that the land in dispute in this case was the same land over which a declaration of title was made in favour of the plaintiffs; and

(ii) whether the Court of Appeal was right when it held that the plaintiffs failed to prove that they had been in exclusive and uninterrupted possession of the land in dispute from time immemorial.”

I think the two issues can conveniently be treated and answered together. And I will do just that.

It was submitted on behalf of the plaintiffs that the Court of Appeal was wrong in its conclusion that there was no nexus between the land in dispute in the previous suits and the land presently in dispute. Counsel referred to the evidence of P.W.1 and D.W.1 and to Exhibits A & B. He said there was no dispute that Aja Oji land is the same as Akwakwa land, and that it was clear from the admission of D.W.1 in particular that the land over which the plaintiffs obtained judgment in the Alayi Native Court is the same land in dispute here. That while the Court of Appeal did not dispute the finding of the trial High Court to the effect that the plaintiffs won all case in respect of the land in dispute against the defendants but it wrongly went on to say that there was no nexus between the land in dispute then and now, completely ignoring the evidence of D.W.1 in the proceedings. He referred to pages 186, 209 and 281 – 282 of the record.

It was also submitted that although the plaintiffs must rely on the strength of their own case and not on the weakness of the defendants’ case, the plaintiffs as in this case are entitled to rely on such evidence where the defendants’ case itself supports that of the plaintiffs. That having shown that the land in dispute is the same land in dispute in the previous suits the learned trial Judge was right to have given judgment in favour of the plaintiffs. It was again submitted that since the parties knew the land in dispute, the absence of a survey plan indicating the same facts which are already admitted is unnecessary. The following cases were cited in support – Ajao v Alao (1986) 5 NWLR (Pt. 45) 802 at 806, Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360.

It was further submitted that what the Court of Appeal considered as an admission by the plaintiffs that the defendants were in possession of the land in dispute on page 275 lines 13 – 25 was actually a restatement by P.W.1 of what constituted the acts of trespass by the defendants. That P.W.1 said that the farming and quarrying of stones by the defendants were without his consent. The Court of Appeal was therefore wrong to have elevated acts of trespass to acts of possession. The case of Aboyeji v. Momoh (1994) 4 NWLR (Pt. 341) 646 was cited in support.