Christopher Okolo V. Eunice Uzoka (1978)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C.

This appeal is against the judgment of Aseme, J., delivered in a consolidated suit (Suit No. AA/98/72 and suit No. AA/113/72) on the 24th day of April, 1974.

The claim in suit No. AA/98/72 wherein the appellant was plaintiff and the respondent defendant was for

“(i) Declaration of customary title of ownership to a parcel of Iyiokpu land situate at Agulu, Awka the extent of which is shown on Plan No. PO/E223/72 and therein edged green;

(ii) 100 Pounds damages for trespass; and

(iiii) Perpetual injunction to restrain the defendant and her agents from further acts of trespass to the said land.”

But in suit No. AA/113/72, the respondent as plaintiff claimed against the appellant as defendant:

“1. N2000.00 (1,000 Pounds) being general damages for trespass by the defendant to John Uzoka’s compound land at Iyiokpu, Awka within jurisdiction, in the possession of the plaintiff;

2. Perpetual injunction restraining the defendant, his servants or agents, from further trespass to the said land.”

On the order of the High Court, pleadings were filed and delivered in the two suits which, on the application of the respondent, were later consolidated for hearing. At the close of the hearing, the learned trial Judge delivered a considered judgment dismissing the appellant’s claim in suit No. AA/98/72 but giving judgment in favour of the plaintiff/respondent in suit AA/113/72 as follows:-

“Finally there will be judgment for the plaintiff (Eunice Uzoka) in suit AA/113/72 for N300.00 damages for trespass. Perpetual injunction is also granted to restrain the defendant (Christopher Okolo), his servants and agents from further interference and trespass to the piece or parcel of land verged green on Plan No. OKE/D1/73 marked Exhibit H but without prejudice to the right of way of 12 feet already granted to the said Christopher Okolo by the plaintiff Eunice Uzoka on the intervention of the police.”

Three grounds of appeal were filed, but as the first ground, which reads:-

“The learned trial Judge was in error in law in not accepting the plaintiff/appellant’s traditional evidence of purchase as conclusive for decreeing title in his favour in the circumstances of this case,”

was no ground at all under the Rules of Court, it was accordingly struck out and learned counsel for the appellant proceeded to argue the remaining two grounds (of appeal) which read:-

“(2) The learned trial Judge erred in law in awarding damages for trespass to the defendant/respondent when evidence showed that prior to the trespass complained of the defendant/respondent had parted with possession of the land in dispute in favour of a third party occupier.

(3) the judgment was against the weight of evidence.”

Ground 2 undoubtedly refers to the judgment in suit No. AA/113/72. It is, we think, pertinent to refer to the relevant pleadings of the parties on the issues raised in this appeal. In this respect, we find paragraphs 3, 4, 8, 16, 17, 18, 19, 20 and 22 of the Statement of Claim of the respondent relevant and they read as follows:-

“3. The land in dispute is a portion of John Uzoka’s compound in Iyiokpu quarters Awka, within jurisdiction. It is shown verged pink on the Plan No. OKE/D1/73 made by Fredrick C. Okoli, Esq. Licensed Surveyor, for the plaintiff when she was the defendant in suit No. AA/98/72 relating to the same land. That plan is filed herewith;

4. The land in dispute is bounded as follows: On the north by the compound of Nwobu Nchekwube, on the south the compound of John Okonkwo and of Oyeoka Nwosu, on the west by the rest of John Uzoka’s compound not in dispute, and on the west by the Onitsha Enugu road.

8.Thus all the land in front of his house, from his said building to the Onitsha – Enugu road, became the absolute property of the said John Uzoka, with the exception of a patch of land on the left – hand side of his road, on which an Iroko tree stood;

16. In 1972, the defendant abandoned the story of a pledge, and further extended his claim (in the present suit) to cover the whole western portion of John uzoka’s compound. He now sues for a declaration of title, trespass and injunction.
17. The plaintiff, in furtherance of her possessory rights, had let out a portion of the land in dispute to Ibru Sea Foods Ltd. in March, 1972 for the building of the cold store.
18. When the company’s workmen were working on the portion let to them, the defendant came into the land in dispute and began to disturb them.
19. He followed this up by bringing a motion in the High Court against the plaintiff on 19th May, 1972, to stop the erection of the cold store, but on 31/7/72 after an adjournment at his own instance, he withdrew the motion and costs were awarded against him.
20. Then on the 25th October, 1972, the defendant broke and entered the land in dispute once more, and went to the portion let to the plaintiff’s tenant aforesaid and caused a lot of disturbance. He then went and brought a policeman into the land in dispute and had three Ibru workmen arrested and taken away to the Awka Police station on the ground that they were working on his land.

22.The defendant threatens to continue to trespass into the land in dispute in order to harass the plaintiff, unless he is restrained by this court.”

To the averments in these paragraphs, the appellant pleaded in paragraphs 2, 3, 14 and 15 as follows:-

“2. The defendant denies paragraph 3 of the Statement of Claim and avers that the disputed land is a portion of the Iyiokpu farm which Umuezekwaka family of Umudioka village conveyed outright by purchase to the defendant in 1950, which extent is shown on Plan No. PO/E223/72 filed in Court;

3 The defendant only admits as averred in paragraph 4 of the claim that the disputed land is bounded in the west by Onitsha-Enugu trunk A road and north by Nwobu Nchekwube’s land

14 Defendant denies ever abandoning the story of a pledge to the plaintiff. Defendant reset his claim in a fresh action when plaintiff forcibly installed Ibru Sea Food Company on defendant’s other lands.

15 The defendant denies all the allegations in paragraphs 17, 18, 19, 20, 21 and 22 of the claim. On 23/10/72, pleadings were ordered in Suit No. AA/98/72. When defendant took his surveyor to the land on 25/10/72 to carry on the survey in accordance with court order, plaintiff and her workmen drove away the defendant and his surveyor after beating them up. Defendant reported the matter to the police.”

With regard to suit No. AA/98/72 only paragraphs 2, 3, 6, 7 and 14 of the Statement of Claim and paragraphs 2, 3 5 and 9, 23, 29, 48 and 54 of the Statement of Defence need be referred to in this judgment for the purpose of disposing of the 3rd ground of appeal in so far as it complains of the judgment in this suit being against the weight of evidence.

The above mentioned paragraphs of Statement of Claim reads:-

“2. In 1950, the members of Umuezekwaka family of Umudioke village Awka, as original owners conveyed outright to the plaintiff a parcel of their Iyiokpu farmland in accordance with Awka native law and custom in the presence of witnesses. The extent of the land so conveyed together with its relative position is shown verged green on plaintiff’s plan No. PO/E223/72 filed with the Statement of Claim.

3. After customary rites which transferred absolute possessory title to the plaintiff, the plaintiff built a six-roomed zinc house on a smaller portion of the said grant shown verged yellow on the said plan, and lived therein with his mother until Awka was disturbed in 1968 during the civil war.
4. In 1957, plaintiff borrowed the sum of (5) five pounds from the defendant and pledged part of his said farmland shown verged blue in plaintiff’s plan as security for the debt. The transaction was witnessed by Samuel Aniezeofo, igboanugo, Onwurah, Njagidi Chibo and Nnebe Ani.
5. In 1966, the defendant exceeded the area pledged to her in her cultivation. Plaintiff protested and tendered to the defendant her redemption fee which she declined.
6. In spite of the said finding of the original grantors, defendant still persists in challenging plaintiff’s title and erecting tenement shops and installations on plaintiff’s land. The defendant would not desist unless restrained by an order of court.”

The respondent in her reply denied appellant’s title and alleged that it was the appellant who was in trespass. In particular, paragraphs 2, 3, 5, 6, 9, 23, 29, 48 and 54 of the Statement of Defence read:

“2. The defendant vehemently denies paragraph 2 of the statement of Claim and puts the plaintiff to the strictest proof thereof;

3. The defendant denies paragraphs 3, 4, 5, 6, 7, 8, 9, 10,11,12,13 and 14 of the Statement of Claim and puts the plaintiff to the strictest proof of each and every allegation of fact contained therein.
4. The defendant further says that the land in dispute was the absolute property of John Uzoka, deceased, the husband of the defendant;
5. When John Uzoka died he left a male issue, Samuel Chikwuemeke Nwake Uzoka, who succeeded to the compound of John Uzoka which includes the land in dispute.
6. The defendant has been in continuous possession of the land in dispute for thirty four years, from 1938 when her husband died until today, peacefully and without any interference from anyone until the plaintiff began his troubles.
7. As the person in possession of the land in dispute the defendant let out portions of it to tenants who paid her rents and reaped the fruits of the economic trees which she and her husband had planted on the land, without any let or hindrance up till today, and uses the land in every way possible.
8. In 1960, after the plaintiff had properly settled down at home, the plaintiff began his process of expansion at the plaintiff’s expense.
9. Then the plaintiff began to make a fence with sticks across the front of his compound. The place he started his fence was well inside the land of the defendant.
10. After some time, the plaintiff, instead of removing the sticks from the defendant’s land as he was asked to do by the representatives of the families, started to use old zinc pans to complete the fence.”

It is therefore clear from the pleadings that the appellant rested his claim to title on the fact of purchase of the land from Umuezekwaka family of Umudioka village in 1950 and his pledge of a portion of the land to the respondent in 1957.

John Uzo (P.W. 2) an ex-soldier and Umerie Okafor (P.W.3) who claimed to be the head of Umuezekwaka family were the star witnesses for the appellant on the issue of purchase.

However, the learned trial Judge summarising his finding on this issue of purchase said:

“Now as to the issue of sale posed above, as already stated, both parties say they bought from the same Umudioka village. I have considered the whole evidence in this connection and I am convinced that plaintiff’s witnesses, 2nd plaintiff’s witness and 3rd plaintiff’s witness were most unsatisfactory. I do not believe the plaintiff and these witnesses and I find as a fact that there was no transaction of sale of the land in dispute verged pink on the plan Exhibit D to the plaintiff by the Umuezekwaka family.”

As regards the issue of pledge which was pleaded as evidence of acts of ownership, the learned trial Judge found and observed:

“Under the customary tenure, allegation of unwritten pledge transaction is one of the flimsiest ways of falsely asserting title over another’s land and evidence in relation to such claims must be closely scrutinized. Apart from all the flaws surrounding plaintiff’s assertion of pledge as pointed out above, I watched 8th plaintiff’s witness give evidence and I formed a very strong impression of him as a most unsatisfactory witness. I did not believe him and the plaintiff that there was any pledge transaction between the plaintiff and the defendant with respect to the area verged blue on plaintiff’s plan Exhibit D.”

With regard to the respondent’s case, the learned trial Judge observed:-

“The defendant gave evidence and called as her boundary neighbours 4th defence witness, Winifred Okonkwo, and 5th defence witness, Esther Nwobu Nchekwube among other witnesses. It was defendant’s evidence that she and her late husband John Uzoka went to live at Iyiokpu in 1919 when the compound of John Uzoka was built. Later, her husband bought lands in front of the compound extending up to the Enugu Onitsha road. These purchases were two – one from Amekwo and the other from Umudeke people. She named Ajuora as the person through whom the purchase was made and she admitted the land bought from Umudeke is the land in dispute. He narrated with great particularity the various unchallenged acts of ownership on the entire land verged green on her plan Exhibit H which also covers the area verged pink on plaintiff’s plan Exhibit D. I must say that the defendant impressed me as truthful witness and I preferred her evidence in all material particulars to that of the plaintiff.

From the totality of the evidence before me and the conclusions I have reached, I am satisfied that the defendant is the owner of the piece of land verged green on the plans H and H1 which area includes the area in dispute verged pink in the said plans.”

The main complaint against the judgment, laid before us by learned counsel for the appellant, was that the learned trial Judge erred in accepting the respondent’s case. He contended that he should not have disbelieved the appellant and his witnesses and preferred the evidence of the respondent. learned counsel however failed to advance any reason to satisfy us that the learned trial Judge had no grounds to justify his rejection of the appellant’s evidence. This complaint was abandoned when the attention of learned counsel was drawn to the serious contradictions and conflicts apparent in the record of evidence of the appellant and his witnesses. The evidence of his witnesses did more damage to his case than he realised.

The 3rd plaintiff’s witness, Umurie Okafor, who was the head of the family in his testimony in chief on the 24th of October, 1973, claimed that he was present at the sale to the appellant of the land by the father of P1- W. 2. But when tested in cross-examination, he claimed that the respondent’s husband late John Uzoka never lived in his compound before they sold the land to the appellant and that the sale was about 30 years previously. He claimed he knew John Uzoka. The evidence on record established the date of John Uzoka’s death at 1938. If there was in truth any sale transaction with the plaintiff, it must have taken place according to the head of appellant’s family before 1938. But the appellant in his pleadings and evidence claimed that he bought it in 1950 i.e. about 12 years after the death of John Uzoka. No tribunal will, after hearing such conflicting evidence from both the appellant and the head of the family which was alleged to have sold and conveyed, come to a conclusion that there was a sale transaction with the plaintiff in respect of the land in dispute in 1950. It is very well settled that in a claim for declaration of title the plaintiff must succeed on the strength of his own case and not on the weakness of the defence Kodilinye v. Mbanefo Odu 2 WACA 336. We find no strength in the appellant’s case. in our view, the finding of the learned trial Judge that there was no sale transaction with the appellant in respect of the land in dispute and that the respondent never committed any act of trespass on appellant’s land was perfectly justified by the evidence.

To succeed in any appeal against the findings of facts, it must be shown that in the performance of its (his) primary duties of appraisal of oral evidence and ascription of probative values to such evidence that the court of 1st instance (the learned trial Judge) made imperfect use or improper use of the opportunity of hearing and seeing the witnesses, or has drawn wrong conclusions from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support. (Fashanu v. Adekoya (1974) 1 All NLR Pt. I page 35 at page 41; Omoregbe v. Edo (1971) 1 All NLR 282 at 289). These, the learned counsel for the appellant has failed to bring to our notice.

The appeal against the judgment in suit No. AA/98/72 fails. We hereby dismiss it (i.e. the appeal against the judgment of Aseme, J., in suit No. AA/98/72 delivered on the 24th day of April, 1974).

Turning to ground 2 which challenges the award of damages in suit No. AA/113/72, learned counsel for the appellant submitted that the respondent is incompetent to claim damages for trespass to the parcel of land already leased out to Ibru Sea Foods Ltd., and contended that the learned trial Judge erred in awarding N300.00 damages for trespass to the land in respect of which Ibru Sea Foods Ltd., a third party is in possession. Learned counsel for the respondent conceded that the respondent could not and did not claim damages in respect of the portion leased out to Ibru Sea Foods Ltd., which was only a small portion of the land in dispute. We find merit in this ground of appeal for the following reasons.

It is the law and this court has so held times without number that trespass to land is actionable at the suit of the person in possession of the land. Amakor v. Obiefuna (1974) 1 All NLR (Pt.) 1 page 119; Adeshoye v. Shiwoniku 14 WACA 86; Emegwara and ors. v. Nwaimo and ors. 14 WACA 347; Tongi v. Kalil 14 WACA 331.

The slightest possession in the plaintiff enables him to maintain trespass if the defendant cannot show a better title. Whittingdom v. Boxall (1943) 12 LJ QB 318; Nwosu v. Otunola (1974) 1 All NLR (Pt.) 1 page 533.

A tenant in occupation, as Ibru Sea Foods Ltd., in this case, can sue but not the landlord except in cases of injury to the reversion. This is where the trespass has caused a permanent injury to the land affecting the value of the inheritance. Then he may sue for injury to his interest without waiting until his future estate falls into possession – Jones v. Llanrnwst UDS (1911) 1 Ch. 393. But for a bare trespass even though committed under a claim of right of way, he cannot sue (Baxter v. Taylor (1832) 4 B & Ad 72). He can however sue for acts of trespass which if acquiesced in, would result in loss or gain of an easement.

We observe that there is evidence on record that the respondent demised a portion of the land in dispute to Ibru Sea Foods Ltd., and put them in possession. There is evidence also and it is the case of the respondent that the appellant on the 25th day of October, 1972 broke and entered the land in dispute, proceeded to the portion let out to Ibru Sea Foods Ltd., disturbed the employees of the company (Ibru Sea Foods Ltd.) working on the site and damaged their construction. The respondent’s pleadings (at paragraphs 18, 19 and 20 of the Statement of Claim in suit No. AA/113/72) are very clear on the point.

It appears as if to make the point clearer on the motivation for this counter-action suit No. AA/113/72, the respondent said in cross-examination:

“I sued the plaintiff because of the damage done to the Sea Foods construction.”

The claim for damages for trespass was therefore tied to the damage to the Ibru Sea foods construction. In our opinion, and we are very clear in our minds on this, the right to claim damages for trespass to the portion let out to Ibru Sea Foods Ltd., does not lie in the circumstances of this case in the respondent but in Ibru Sea Foods Ltd., who was not a party to these proceedings.

This ground of appeal has been made out and the appeal against the award of damages for trespass succeeds.

As regards the grant of perpetual injunction, we endorse fully the observation of the learned trial Judge which reads:

“The claim for perpetual injunction is on a different footing. This claim is with respect to John Uzoka’s compound which is the area verged Green on the plan Exhibit ‘H’. There is abundant evidence that the plaintiff (that is to say Christopher Okolo, the defendant in suit AA/113/72) has incessantly and unjustifiably encroached on the land verged Green and Eunice Uzoka is entitled to the equitable relief of injunction sought.”

In summary, we find no merit in the appeal against the judgment in Suit AA.98/72. We accordingly dismiss the said appeal against the said judgment and affirm the judgment and orders of the court below in that suit.

With regard to suit No. AA/113/72, the appeal against the award of damages for trespass succeeds but the appeal against the order of perpetual injunction fails and is hereby dismissed.

We hereby set aside the N300.00 damages awarded for trespass and disallow the claim for damages for trespass but affirm the order of perpetual injunction and costs made by the court below.

The appellant shall pay the respondent costs in this appeal assessed at N390.00.

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Other Citation: (1978) LCN/2068(SC)