Agbino Obioma & Ors. V. Lawrence Emeye Olomu & Ors. (1978)
LawGlobal-Hub Lead Judgment Report
S. SOWEMIMO, J.S.C.
The judgment on appeal before us is in respect of two consolidated Suits W/95/72 and W/110/72. In the first suit, the plaintiffs, who are members of Ebite family claimed a declaration of title to a piece of land on Effurun/Ekpan Road, the plan of which was tendered in the case as Exhibit A, N600.00 damages for trespass and an order for perpetual injunction and any other reliefs. In the cross action filed by the defendants in the first suit, as members of Agbede family, against the plaintiffs, the claim is for a declaration of title to a piece of land on the same road, as stated in the plaintiffs’ claim, the plan of which was tendered as Exhibit B and an order of perpetual injunction. The learned trial Judge AKPATA, J., at the Bendel State High Court, sitting at Warri, delivered judgment on the 5th of December, 1974 in favour of the defendants in respect of their cross action but to a smaller area of land which is the same area of land as in Exhibit A, which the plaintiffs claimed in the first suit, and which claim was dismissed.
We may, as well, point out that the plaintiffs’ surveyor, whilst in the witness box, superimposed the land shown in Exhibit A on the land shown on Plan Exhibit B, which is the defendants’ plan, in pencil marks, and the defendants’ surveyor on the other hand produced a plan on which he had accurately superimposed the area of Exhibit A on Exhibit B. With the exception of a few discrepancies, the land on Exhibit A is definitely within the land in Exhibit B on all sides, and the whole land falls within the eastern side of the land claimed by the defendants in Exhibit B. As a matter of fact, it forms only a small portion divided into two by a road – see Exhibits B1 and B2.
The learned trial Judge in his judgment stated inter alia as follows:-
“On the totality of the evidence adduced before me, I am of the view that the land along Ekpan Road in the area in dispute owned by Onoseri was shared amongst some of his children and that the defendants’ ancestors Ajomata was given a portion of the land. I am strengthened in my view by the Survey Plans Exhibit B and Exhibit B2. In these exhibits, it is shown that members of the defendants’ family have rubber trees and other traditional trees outside the area claimed by the Plaintiffs and contiguous to the area in dispute. The issue, therefore, is the ownership of the area verged red in Exhibit A.”
After a reference to a portion of a judgment of this court in L. A. Odunsi, Ojora of Lagos and 2 Ors. v. Francis E. Pereira and Anor. (1972) 1 S.C. 52 at page 64 and after a review of the pleadings in both suits, the learned trial Judge concluded as follows:-
“In the circumstance, the plaintiffs are only entitled to a declaration of title in respect of the area marked “Ebite Family Land not in dispute” – Area 8650 sq. yd. in the plan No. LSU 241 which is Exhibit A. The plaintiffs claim for a declaration of title in respect of the area verged red in the said plan No. LSU 241 and for damages and injunction is bound to fail. It is accordingly dismissed.
There is sufficient evidence to show that the area in dispute verged red in Exhibit A was the area Agbedeye, Titi Majemite (the 4th plaintiff witness) Oyiti Irero and other persons referred to by the 2nd plaintiff witness farmed on. I hold that these persons farmed on the land by virtue of their membership of Agbede family, Agbedeye of course being a wife at the material time to Mereti Majemite.
“In the circumstance, a declaration of title is hereby entered in favour of the Defendants who are Plaintiffs in Suit No. W/110/72 in respect of the area verged red in Exhibit A. The area claimed by the Plaintiffs in Suit No. W/110/72 far exceeds the area in dispute as shown in Exhibit A. Although they have successfully proved their boundaries to the north and south, I am, however, not satisfied with the testimony of the 4th and 5th defence witnesses touching on the boundaries with Agbamu and Akposio families. In the circumstance, I have no alternative but to non-suit the Defendants (Plaintiffs in Suit No. W/110/72) in respect of the area outside the area in dispute in Exhibit A and the superimposition in Exhibit B, i.e. the area outside Exhibit B1 in Exhibit B. In effect, the defendants are non-suited in respect of the area outside the area verged yellow and marked 1 and 2 in Exhibit B2.
“The plaintiffs (Defendants in Suit No. W/110/72) and all other members of Ebite family, their servants and/or agents are hereby restrained from entering the area verged red in Exhibit A and verged yellow and marked 1 and 2 in Exhibit B2.”
On appeal to this court, Mr. G. O. K. Ajayi, learned counsel for the appellants, argued the following grounds of appeal:-
“(1) The judgment of the learned trial Judge was against the weight of evidence.
(2) The learned trial Judge erred in law in giving judgment for declaration of title in favour of the Defendants (Plaintiffs in Suit No. W/110/72) in respect of the area edged RED in the Plan Exhibit A filed by the Plaintiffs when:-
(i) The claim of the Defendants (as Plaintiffs in Suit No. W/110/72) was in respect of a large parcel of land edged PINK in the plan filed by them
(ii) The learned trial Judge had held that the Defendants (as Plaintiffs in Suit No. W/110/72) had failed to prove the boundaries of the land claimed according to their said plan in their Writ and their Pleadings
(iii) The Defendants (Plaintiffs in Suit No. W/110/72) had not made claim for declaration of title in respect of the smaller parcel of land edged Red and claimed by the Plaintiffs in their Plan Exhibit A.
(iv) The learned trial Judge had in fact non-suited the Defendants (as Plaintiffs in Suit No. W/110/72) in respect of their claim to declaration of title to the land claimed by them in their plan.
(3) The learned trial Judge erred in law in not dismissing the defendants’ claim after he found that they had not proved the boundaries of the land claimed.”
Learned counsel submitted that in considering the claim in W/110/72 it was not open to the learned trial Judge to give judgment on a portion of land which is not the subject matter in dispute in that case. He submitted that once the learned trial Judge had held that the plaintiffs, in that suit, having failed to prove, to the satisfaction of the court, the boundary in the west, the claim should have either been dismissed or non-suited. On the other hand, Dr. Mowoe, learned counsel for the respondents, i.e. Agbede family, submitted that since the Plan Exhibit B2 was admitted in evidence and since the learned trial Judge accepted as accurate that the area verged yellow in Exhibit B is the same as the area verged red in Exhibit A, it was open to the learned trial Judge to give declaration of title to the land which is within the larger area Exhibit B though the larger area was found to be unsatisfactorily defined on the western boundary.
We have read the pleadings in the two consolidated suits, and the issue that was fought out by the parties, was as to whether the piece of land shown in Exhibit A was given as marriage gift to Agbedeye, a member of Ebite family, when she married Majemite, a member of the defendants, Agbede family, and that Agbedeye pledged it to members of the family of Agbede, and which the Ebite family sought to redeem or, in opposition to this, that the Agbede family claimed it as theirs both in their averments and evidence, and which was accepted by the learned trial Judge, that the land originally was a portion of land shared to the ancestor of Agbede family, one Ajomata. The judge also held that Agbedeye who died childless, and Titi, a member of Agbede family, were only granted farming rights on the land and that the radical title to the land remained in the Agbede family. It was because of the consolidation of the two suits that the piece of land marked Exhibit A and superimposed on Plan Exhibit B as Exhibit B2 verged Yellow, that not only the area verged yellow became a subject matter of dispute in the two suits but also the larger area of land which is outside the area verged yellow and which is still within the area edged pink in Exhibit B.
In support of the contention of learned counsel for the appellants, attention has been drawn to the following cases:-
(i) Chief Yakubu Makarah and Ors. vs. Chief Okere Imonikhe S.C. 125/73 delivered on the 19th of April, 1974 and reported in (1974 4 S.C. page 151 at page 166 to 168.)
The court stated inter alia as follows:-
“The court has a discretion in granting a declaration of title and the substance of the complaint in this case having been compromised in such a way by the Plaintiffs, the learned trial Judge had a duty to reconsider the propriety of granting a claim for declaration of title. It does not appear from the records that he did this. But, apart from the errors of the learned trial Judge, the Plaintiffs’ case is such that in the circumstances they could not have obtained a decree of declaration of title to any of the pink area even if any one of them is identified with paragraph 7 of their Statement of Claim. None of those areas has any boundary pillars to demarcate it. Besides, at the trial, the plaintiffs gave no evidence to identify in particular the real subject-matter of their action as postulated by paragraph 7 of their amended Statement of Claim. In such a case, neither an order of non-suit nor one sending back the case for a retrial can be just. The Plaintiffs have simply failed to prove the case which they had brought to court. We have decided that the appropriate order to make is one dismissing the Plaintiffs’ case.”
(ii) Ekpenyong and Ors. v. Inyong and Ors. (1975) 2 S.C.page 71.
This court at page 80 stated:-
“Secondly, we think that, as the reliefs granted by the learned trial Judge were not those sought by the applicants, he went beyond his jurisdiction when he purported to grant such reliefs. It is trite law that the court is without the power to award to a claimant that which he did not claim. This principle of law has time and again, been stated and re-stated by this court that it seems to us that there is no longer any need to cite authorities in support of it. We take the view that this proposition of the law is not only good law but good sense. A court of law may award less, and not more than what the parties have claimed. A fortiori, the court should never award that which was never claimed or pleaded by either party.”
(iii) Abang v. Effiom and Ors. (1976) 1 S.C page 17.
This, court said inter alia at page 31:-
“Learned counsel for the Appellant having failed to make out any arguable case for the Plaintiff requested this court to allow Plaintiff to stay in the portion of land where he had his building. It is not open to this court to give judgment for the portion of land which was not specifically claimed and on a ground which the Plaintiff himself did not rely upon in the lower court.”
In reply, learned counsel for respondents, said that the cases cited were not relevant to the issues joined by the parties in the consolidated cases and therefore irrelevant for a consideration as to whether it was or was not open to the learned trial Judge to give judgment in respect of land in Exhibit A, which is within the land in Exhibit B as shown in Exhibit B2, although a lesser area. We wish to refer to the decision of this court in FSC/171/58 – Felix Nnaife v. Charles Ogadike delivered on the 11th day of March, 1959, in which this court affirmed the judgment for declaration of title granted in respect of a smaller area inside the larger area claimed in the summons. We wish also to refer to the judgment of this court in FSC/295/60 dated 30th June, 1961 titled –
(i) Ajana Enwelum and Anor. v. Nnaegbo Ekweze and Ors.;
(ii) Ozodigwe Madika and Ors. v. Nnanwuba Asiegbu and Ors.; and
(iii) Vincent Ekwealor and Ors. v. Ajana Aduaka and Ors.
in which this court in the consolidated action held that since the large area of land claimed was undefined, the smaller area whose eastern boundary was also undefined, it was wrong for the trial Judge in the court below to award declaration in respect of the undefined smaller area as being within the larger area which though claimed, was not proved.
It is settled law that in a claim for a declaration of title, a declaration of title of a defined smaller area within the larger area may be made by the trial court, so long as the lesser area is properly defined and proved to the satisfaction of the court – See Nwokeleke and Ors. v. Osele of Onicha and Ors. reported in WRNLR 1955-56 page 87; Ezeokeke and Ors. v. Uga and Ors. (1962) 1 ANLR page 482; and Titus Sogunle and Ors. v. Amusa Akerele and Ors. (1967) NMLR page 58.
We are of the view that since plaintiffs’ surveyor, Chief Isikwe Ufuegbune 1st P.W., was able to show that Exhibit A, which the plaintiffs claimed to be their own land was within the area in Exhibit B and which he marked out in pencil as Exhibit B1 in the defendants’ plan i.e. Agbede family, and the defendants’ surveyor, Theophilus John 1st D.W., similarly showed in Exhibit B2 that the area edged red in Exhibit A was within the area in Exhibit B, it was open to the learned trial Judge, in the consolidated action, and on the issue joined as to whether that area in Exhibit A was either pledged or not by the Ebite family or that it was a portion of land of the Agbede family, on which Agbedeye and Titi were allowed to farm, to give judgment in favour of Agbede family in respect of Exhibit A. We are quite satisfied that a declaration can be made on the ownership of the area verged red in Exhibit A and that the learned trial Judge was quite right to make the declaration which he made.
The appeal therefore fails and it is hereby dismissed. The plaintiffs/appellants, the Ebite family, will pay to the respondents i.e. the Agbede family costs assessed at N138.00.
SC.27/76
