E. A. N. Nwokafor & Ors. V. Mrs. Ifeyinwa Nworji Agumadu (2008)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LADAN TSAMIYA, J.C.A.

The action that culminated in this appeal was commenced by the plaintiffs (for themselves and on behalf of the members of Agulu-Awka Village, Awka) when they took out a writ of summons, against the defendant on 18th December 2002 claiming for General damages for trespass and injunction. Following the order of the trial court, the parties duly filed and exchanged their pleadings. The plaintiffs filed their statement of Claim which was later amended while the respondent filed with the leave of the trial. Court her statement of Defence out of time. The case was subsequently heard on the issues as joined by the parties in their pleadings.

The plaintiffs by their amended statement of Claim filed on 17/5/2005 pleaded thus (at pages 7-10 of the printed Record:)

1. The Plaintiffs are members of Agulu Awka Village, Awka in Awka South Local Government Area of Anarnbra State and bring this action for themselves and on behalf of members of Agulu Awka Village.
2. The Defendant is a petty trader and hotelier and resides at Umubele Quarter, Agulu village, Awka.
3. The land in dispute in this case is known as and called Ezinwafor square or Agulu Awka Village square.
4. The said parcel of land lies at Umubele quarter, Agulu Awka Village, Awka and is the communal property of the entire members of Agulu Awka Village Community.
5. The boundaries of the said land as well as the features thereon are more particularly shown and verged blue in Plaintiffs’ survey plan number SSC/AN-DO5/2004.
6. The land in dispute in this case forms part of a large expanse of land founded by the Plaintiffs’ ancestor Agulu Nebuzo. Agulu Nebuzo was a great hunter and discovered the land in dispute during one of his hunting expedition.
7. The land in dispute has since its founding been used by the entire Agulu Awka village Community in common. The said land is usually used as arena for customary title taking and other customary ceremonies in Agulu Awka Community such as Ajaghija title taking reception of dignitaries and also as a place for conferment of honours on worthy Agulu sons and daughters.
8. As owners in possession of the land in dispute, the plaintiffs have been exercising diverse acts of ownership thereon. The Plaintiffs built their town hall on part of the land in dispute. The said town hall is known as and called Ulonese Hall and is shown in Plaintiffs’ survey plan.

The plaintiffs also built a primary school on the land in dispute and have their revered juju shrines on the land in dispute. Some of the worshipped by the plaintiffs on the land in dispute are Aneke, Akputakpu and Ofoloko. All these features are shown in the Plaintiffs’ survey plan.

9. The Defendant in this case is the wife of late Nworji Agumadu from Umubele quarter, Agulu Awka Village, Awka whose compound abuts the land in dispute.
10. On or about the year 2000, the Defendant without the leave or license of members of Agulu Awka Village Community encroached on part of Agulu Awka village square by building an illegal structure thereon.

The area of the land in dispute encroached upon by the Defendant is shown verged pink in the Plaintiffs’ survey plan.

11. On noticing the provocative act of the Defendant, members of Agulu Awka committee the body charged with the day to day running of Agulu Awka village community invited the Defendant to a meeting. At the said meeting which was attended by the Defendant, she was asked to remove the illegal structure which she built on the land in dispute and she agreed to do so.
12. The Defendant notwithstanding her promise to remove the said illegal structure failed to do so. The Defendant’s late husband was thereafter visited by the Ndichies representing the seven quarters that make up Agulu Awka as he was then bedridden and was advised to prevail on his Wife to pull down the illegal structure she constructed on the land in dispute as earlier ordered by the Agulu Awka Committee. At the said meeting, the Defendant’s husband Nworji Agumadu told the Ndiehies that he built on his boundary line and that the conduct of the Defendant did not receive his blessing.
13. The Plaintiffs by a letter dated 14th day of November, 2002 written by their Solicitor, M.L Onochie Esq. again warned the Defendant to remove the illegal structure she built on the land in dispute within fourteen days from the date of the receipt of the said letter. The said letter shall be relied upon and the Defendant is hereby given notice to produce its original at the hearing.
14. The Defendant despite the receipt of the said letter refused to pull downs the said illegal structure and has vowed to continue in her act of trespass unless restrained by this honourable court.
15. By reason of the facts aforesaid the Plaintiffs have suffered loss.

Wherefore the Plaintiffs claim against the Defendant as follows:

(i) N1,000,000,00 (One million Naira) being general damages for trespass committed by the Defendant on Agulu village square lying and situate at Umubele quarter, Agulu Village Awka shown verge blue in Plaintiffs’ plan NO.SSC/An-D05/2004 prepared by A.I. Uduzue Esq. Surveyor.

(ii) An order of perpetual injunction restraining the Defendant, her servants and agents from committing further acts of trespass on the said land.

The statement of Defence of the Defendant is as follows:-

1. SAVE that the Plaintiffs are members of Agulu Awka the rest of the averment in paragraph 1 of the Statement of Claim is denied by the Defendant in its entirety.
2. In further answer to paragraph 1 of the Statement of Claim, the Defendant say that the Plaintiffs are dessident group in Agulu Awka and that the suit was brought against her because she refused to join them. The Defendant will at the trial of this suit contend that the Plaintiffs have no locus standi to bring this action and were never permitted by the Agulu Awka Community to bring the same.
3. The Defendant admit paragraph 2 of the Statement of Claim.
4. The Defendant admit paragraph 3 and 4 of the Statement of claim.
5. The Defendant deny paragraph 5 of the Statement of Claim and put the Plaintiffs to the strict proof of every allegation of fact contained therein. The Defendant says that the plan of the Plaintiffs is not an accurate plan, and that the land claimed by Plaintiffs as the land in dispute affects only a portion of the Defendant’s land.
6. The Defendant deny paragraphs 6, 7, and 8 of the Statement of Claim.
7. The Defendant admit paragraph 9 of the Statement of Claim and say that the Defendant’s land portion of which is now in dispute with the Plaintiffs, is shown verged blue in plan No. UGO/ AN-DO8/2005 made for the Defendant by licensed Surveyor, and attached to this Statement of Defence. The Defendant will rely on all the features in the plan during the trial of this suit.
8. The Defendant deny paragraphs 10, 11 and 12 of the Statement of Claim and put the Plaintiffs to the strict proof of every allegation of fact contained therein.
9. The Defendant deny paragraphs 13 and 14 of the Statement of Claim and in further answer thereto say that at no time was a letter written to her to dismantle an illegal structure and did not receive any letter from the said Solicitor, M.I. Onochie, Esq.
10. With reference to paragraph 15 (i) and (ii) of the Statement of Claim the Defendant say that the Plaintiffs are not entitled as claimed, or at all.
11. The Defendant further aver that the land verged blue is hers by right of grant inter wolves by her late husband, late Nworji Agumadu. The Defendant say that the portion of the land being falsely claimed is part of the land granted her by the said husband.
12. The Defendant avers that the said Ezenwafor square is demarcated from her land by a tarred road known as Agulu Avenue.
13. The Defendant will at the hearing of this suit urge the court to dismiss same on the ground that it frivolous, vexatious and gold-digging.

The trial Court heard the parties and their witnesses. The 1st plaintiff gave evidence and called one other witness while the Defendant though did not give evidence, she called only one witness before the case was adjourned for continuation of defence.

On the adjourned date, neither the defendant nor her witness was present before the trial Court and the case was further adjourned for continuation of defence when at the second adjourned date no more defence witness presented. The trial Court consequently closed the case for defence in view of the defence failure to bring any more witnesses. The case thereafter was adjourned for address.

The parties submitted their respective written addresses, and after going through the written addresses the learned trial Judge in his reserved judgment (of 4 pages) delivered the judgment on 26/6/2006 dismissing the whole claim in favour of the defendant with N20,000.00 costs.

Being dis-satisfied, the plaintiffs (here is referred to in this appeal as appellants) appealed to this Court on 3 grounds of appeal, as contained in their Notice and Grounds of Appeal filed on 16/8/2006.

In accordance with the Rules of this Court, the appellants filed their Brief of argument within time and the defendant (here in this appeal referred to as the respondent) also filed her own Brief of argument within time. The parties exchanged their respective Briefs.

At the hearing of this appeal on 15/1/2008, only the appellants’ counsel was present and adopted their Briefs of argument and urges this Court to allow the appeal while the respondent’s counsel, though he was served with the hearing notice against same 15/1/2008, he was absent. Since the respondent filed Brief, by virtue of Order 17 r.9 (4) of the Court of Appeal Rules (supra) this appeal will be treated as having been duly argued.

In the appellants’ Brief, three issued were formulated for consideration of this Court. They are:

1. Whether the plaintiffs/appellants proved the identity of the land in dispute in this case.
2. Whether the learned trial Judge was right when he held that since the plaintiffs/appellants represent only a faction in Agulu- Awka Community, the present action filed by them cannot be said to be for the benefit of the entire village.
3. Whether the learned trial Judge was right when he held that the plaintiffs/appellants failed to prove that they are ineffective possession of the land in dispute.

In the respondent’s Brief, the appellant’s issues were adopted and same were argued. I will consider these three issues in the light of the grounds of appeal filed by the appellants as they do properly arise from the grounds of appeal. The merits of this appeal would therefore be considered on the basis of the issues reproduced above from the appellants Brief. Before doing so, it is, I think, desirable to state the facts of the ease for both parties briefly.

Appellants’ case is that the land in dispute belonged to Agulu Awka Community and it forms part of the large expanse of the land founded by the Appellants’ Ancestor called Agulu Nebuzo who was a great hunter. It was has been used as an Area for Customary Ceremonies. And between 1999 and 2000 the P.T.F. constructed a gutter which divided the village square into two and the two sides of the gutter still belong to the appellants. It is on one part of the gutter that Respondent encroached by building an illegal structure, and a person must pass through the land in dispute before entering the Respondent’s store. That there is a boundary which is not straight, between Agulu village land and Nworji Agumadu’s land. Nworji Agumadu is the husband of the Respondent. The land in dispute was surveyed and the survey plan is marked Exh. ‘B’.

Under Cross-Examination PW1 admitted that the place the Respondent encroached is verged ‘RED’ on Exhibit ‘B’. PW1 stated that he showed the features contained on the Survey Plan to the Surveyor. Both Agulu Committee, which oversees the day today running of village and the Committee called Ndichie knew about the encroachment and directed us for the Court’s action.

The Respondent’s case is that the land in dispute belonged to her and is located at Ezi-Nwafor, Umubele Village Awka. That Ezi-Nwafor square is bounded on one side by the tarred road, called Umubele road.

Having stated the brief facts of the case as contained in the record, I will now deal with the issues:

1st ISSUE

The appellant’s first issue deals with the question of identity of the land trespassed upon. In arguing the appeal under this issue it was submitted that in a land case, the identity of a land in dispute may be proved by producing a survey plan prepared by a surveyor showing the boundaries, size, extent and, location of the land, or by calling credible intelligent observant/knowledgeable witnesses who can adduce evidence as to the description and identity of the land in respect of which the declaration is sought. The case of Ajide Araba V. Ogunbiyi Asalu (1980) 5-7 S.C. 78 at 92-93 was cited and relied upon to support this submission. It was further submitted that the appellants produced and admitted in evidence by parties consent, a survey plan prepared by the licensed surveyor and the said plan was admitted in Evidence as Exhibit ‘B.’ It was drawn to scale and the features on the land in dispute such as the Ulonese hall, the Ogbu tree, the Arobinagu Juju and the Compound of the various families that share the boundary with the land in dispute were shown therein. That there was no evidence on record indicating that the scale indicated as TN cannot locate the area verged blue in Exhibit ‘B’. The case of Jacob Bolaji Adelosola & 4 Ors. V. Joseph Oladirin Akinde & 3 Ors (2004) 12 NWLR (Pt.887) 295 at 318-319 per Edozie J.S.C. (as he then was) was relied in support of this point. It was also submitted that there was no any pleading or Evidence from the respondent to show inaccuracies in Exhibits ‘B’.

In response, the contention made for the respondent is to the effect that where the identity of the disputed land is in issue and the two parties have filed survey plans, the identity of the land can only be reached by comparison of the survey plans. And in order to discharge the burden cast on the appellants, the filing of a composite plan by the appellants is mandatory and no such composite plan was tendered in evidence in proof of the identity of the land in dispute. Section 135-137 of the Evidence Act 1990 and the case of Nnachi V. Okoro (1998) 1 NWLR (Pt.535) 573 were cited and relied upon to support her contention. Failure to file the said Composite plan is fatal to the case of the appellant and urges this Court to answer issue 1 in the respondent’s favour.

I have considered the parties submissions under the first issue which is bordered on the identity of the land in dispute.

It is without doubt that where a claim is based on trespass and injunction, the onus is on the plaintiff to prove the identity of the land tress passed upon with clarity and certainty. This is mandatory because where an area of land is uncertain, it will be difficult and impossible to prove trespass to the land and thereafter grant injunction. See Babatola V. Oba Aladejana (2001) 6 NSCQR (Pt.) 1017 at 1028 par. A. In Udeze V. Chidebe (1990) 1 NWLR (Pt.125)141 it was held that it is the plaintiff’s first duty to prove the area over which he claims with certainty and precision. See Baruwa V. Ogunsola (1938) 4 WACA 159. The statement of claim, the survey plan (if any) and other evidence adduced must define with maximum certainty the area or boundries of the land claimed (or encroached as in this case). See Aboyeji V. Momoh (1994)4 NWLR (Pt.34) 646 at 664; Ellias V. Suleimon (1974) NWLR 193 and Onu V. Agu (1996) 5 NWLR (Pt.451) 652.

The question now is have the appellants by their evidence sufficiently identified the land in dispute which the respondent interfered with and which they asked the court to make an order of injunction?

Let me pause here and refer to the relevant pleadings exchanged by the parties in order to see their respective averments on the issue of identity of the land in dispute. The relevant paragraphs are 3, 4, 5, 6, and 10 of the Statement of Claim already reproduced above in this judgment, as follows:

3. The land in dispute in this case is known as and called Ezinwafor square or Agulu Awka Village square.
4. The said parcel of land lies at Umubele quarter, Agulu Awka Village, Awka and is the communal property of the entire members of Agulu Awka village Community.
5. The boundaries of the said land as well as the features thereon are more particularly shown and verged blue in plaintiffs’ survey plan number SSC/AN-DO5/2004.
6. The land in dispute in this case forms part of a large expanse of land founded by the Plaintiffs’ ancestor Agulu Nebuzo. Agulu Nebuzo was a great hunter and discovered the land in dispute during one of his hunting expedition.
7. On or about the year 2000, the Defendant without the leave or license of members of Agulu Awka village Community encroached on part of Agulu Awka village square by building an illegal structure thereon. (The area of the land in dispute encroached upon by the Defendant is shown verged pink in the Plaintiffs’ survey plan.)

The respondent on her part, dealt with the identity of the land in dispute in the following paragraphs of her statement of defence reproduced in this judgment as follows:

3. The Defendant admit paragraph 2 of the Statement of claim.
4. The Defendant admit paragraph 3 and 4 of the Statement of Claim.
5. The Defendant deny paragraph 5 of the Statement of Claim and put the Plaintiffs to the strict proof of every allegation of fact contained therein. The Defendant say that the plan of the Plaintiffs is not an accurate plan, and that the land claimed by Plaintiffs as the land in dispute affects only a portion of the Defendant’s land.
6. The Defendant aver that the said Ezenwafor square is demarcated from her land by a tarred road known as Agulu Avenue.

The issue of identity of the land encroached upon was contested by both parties at the trial Court. The trial Court, in a considered judgment, referred to the evidence of witnesses and the survey plan tendered in support of each party’s claim to the land in dispute. Upon such evidence the learned trial judge held that the parcel of land in dispute had not been identified.

From the printed record of appeal both parties chose to tender survey plans.

There is Exh. ‘B’ tendered by the appellants and the respondent tendered Exh. ‘C’. It is to be remembered that the purpose of respondent filing a counter survey plan is to indicate that the appellants’ plan does not accurately represent the correct position of the location and the extent of the land in dispute or that the land in dispute is wrongly delineated.

Physical comparison of the two survey plans will show that both are contradictory to one another in the sense that each is showing the land claimed by each party. In a situation where there are two plans, one filed by the plaintiff and another one filed by the defendant, and both plans were tendered by consent of the parties, as in this case, there is need or requirement to file a composite plan as the land in dispute can only be reached by comparison of the three survey plans. Therefore, I am in total agreement with the respondent’s submission that in order to discharge the burden cast on the appellants, filing of a composite survey plan is mandatory, which in the instance case no such composite survey plan was filed and tendered in evidence in proof of the identity of the land trespassed. See sections 135-137 of the Evidence Act 1990 and the case of Nnadi V. Okoro (1998) 1 NWLR (Pt.535) 573. Failure to file the composite survey plan is fatal to the appellants’ case.

The purpose of a survey plan in a land dispute is to identify the land in dispute. It is also to delimit the land with sufficient particularity.

In the instance case though the appellants in their statement of claim averred:

Para. 5 The boundaries of the said land as well as the features thereon are more particularly shown and verged ‘BLUE’ in plaintiffs’ survey plan NO.SSC/AN-005/2004.

Para.10 … The area of the land in dispute encroached upon by the Defendant is shown verged ‘PINK’ in the plaintiffs’ survey plan.

Yet they did not adduce evidence in line with these averments.

In view of what I said above, there is uncertainty as regards to the identity of the land trespassed for which the trial judge was asked to issue injunction order. Consequently the argument of the appellants that they proved the identity of the land in dispute does not carry any weight and should be discontinuance. This issue No.1, and its relevant ground of appeal have therefore failed and the issue is resolved in favour of the respondent.

SECOND ISSUE:

This issue raises the question whether individual member of community has authority to sue, i.e. Locus-standi. In their brief of argument, it was submitted on behalf of the appellants that the appellants do not need to obtain the consent of all the members of Agulu Awka Community before they can maintain an action to protect their interest in Agulu Awka communal land. The following cases were cited and relied upon to support their contention:

George Ugwu & Ors. V. Jonas Agbo & Ors. (1977) 10 S.C. 27; Dadi V. Garba (1995) 8 NWLR (pt.411) 12. Babayeju V. Chief Ashamu (1998) 9 NWLR (Pt.567) 546; and Dr. Augustine Mozie & Ors v. Chike Mbamalu & Ors (2006) 15 NWLR (Pt.1003) 466 at 493 par. C – E.

In response, the Respondent submitted that the appellants did not have locus standi since the consent of Ndichie Agulu Community Awka was never obtained before the institution of this suit. It was also submitted that the oral evidence of PW1 and PW2 confirmed that the appellants are dissidents groups and it was their group that initiated the action. It was submitted that a plaintiff whose claim is in respect of a subject matter, which concerns the public at large, would not have locus-standi to maintain the claim. The case of Adesanya V. The President, Federal Republic of Nigeria (1981) 2 NCLR p.358 was relied in support of this contention.

The learned trial judge, pursuant to the Respondent’s challenge that the appellants’ have no locus-standi, has decided that, “it cannot be possible for the plaintiffs to convince the trial court that this action was brought for the benefit of the entire Agulu Awka Community”.

It is necessary to make it abundantly clear that what constitutes Locus standi, and how to search for and determine it in the circumstance of this case was misconceived by the respondent. The decided cases are overwhelming on this point. The appellants in their statement of claim pleaded their respective capacity to sue for themselves and on behalf of members of Agulu Awka Village Community. That was not challenged in the proper manner. The law is stated in Wiri & Ors V. Ushe & Ors. (1980) 12 NSCC 1 where at page 5, IDIGBE J.S.C. (as he then was) said

“The law on this matter is this:

1. If the defendants (respondents) desire to question the authority of the plaintiffs (appellants) to sue on behalf (i.e. in the name of) Umuagbai Community, it is not open for the defendant to raise the objection by way of defence but they should (a) at an early stage of the proceedings, move the court to strike out the name of the Community as plaintiffs: see Russian Commercial & Industrial Bank V. Comptoir D, Es Compte De Mulhouse (1925) A.C 112 for comparative situation, or (b) by Counter affidavit filed at the time of the hearing of the application for order of Court for leave to sue in representative capacity, the defendant should endevour to prevent the Order from being made and …”

In the present case, what the respondent did was that in paragraph 1 of her statement of defence admitted that the plaintiffs are members of Agulu Awka Community. In her statement of defence, paragraph 4, she also admitted the fact that the land in dispute is known and called Ezi-Nwafor square or Agulu Awka Village square and that it lies at Umubele quarter, Agulu Awka Village, Awka and is the Communal property of the entire members of Agulu Awka Village (on whose-behalf the plaintiffs said to have brought the action) clearly show, a member of a Community or family is competent to bring an action to protect the interest of Community in respect of Communal Property. This is so generally even if he has no authority of the Community to bring the action. See Sogunle V. Akerele (1967) NMLR 58, and Olagbegi V. Oguuoye II (1996) 5 NWLR (Pt.448) 332 at 352 par. D-E. If therefore a party’s standing to sue is made an issue in a case, what has to be decided is whether that party is a proper party to request adjudication over a particular subject matter. See Adesanya V. President of Nigeria (supra) Oloriode V. Oyebi (1984) 1 SCNLR 390; and Thomas V. Olufosoye (1986) 1 NWLR (Pt.18) 669.

I have no doubt that the appellants here eminently had the necessary standing to sue to protect communal land in Agulu, Awka Village.

In view of what I said above the issue of Locus standi raised at the trial court by the respondent is without merit. It ought to be and is hereby dismissed, and this second issue is answered in favour of the appellant.

THIRD ISSUE:

Under issue 3 the appellants, complains against the learned trial judges decision that appellants failed to prove that they are in exclusive possession of the land in dispute as against the respondent who has a store which entrance is only through the land in dispute. It was submitted on their behalf that there is no evidence to support that finding of the learned trial judge.

In response, the learned counsel for the respondent contended that the appellant did not demonstrate how the land in dispute belonged to their faction alone in order to induce the trial court to restrain the respondent from further trespass.

As regards the argument under this issue I must point out that the appellants’ claim at the trial court was on trespass and injunction. They did not claim for declaration of title. In this regard it is a settled principle of law that where a plaintiff claims damages for trespass and injunction and the defendant alleges that the land in dispute belonged to him, as in the present case, title has thereby been made an issue in the case and the burden on the plaintiff is to show that he was not only in exclusive possession of the land at the time of the trespass but also that his own title to the said land is better than that of the defendant. See Amakor V. Obiefuna (1974) 3 S.C.67; Avase v. Arase (1981) 5 S.C. 33, and Idesoh V. Ordia (1997) 3 NWLR (Pt.49) 17.

In doing so, the plaintiff must rely on the strength of his own case and not on the weakness of the defence case. See Kodilinye V. Odu (1953) 2 WACA 336. I grant it to the appellants that if the piece of evidence to wit: the land in dispute is the only access road leading to her shop – which is the piece of evidence elicited from PW1 under Cross-examination, is excluded/expunged from the evidence for appellants, there would be no evidence to support the finding of the trial court that the plaintiffs are not in exclusive possession of the land in dispute. That obviously was a weakness in the defence case. But it would not, in my view, without more lead to a pronouncement by the trial court in favour of the appellants’ case, since appellants as plaintiffs would still have to prove their case. Appellants submitted that it was wrong for the trial court to hold that they have not proved their exclusive possession of the land in dispute.

I find no merit at all in their argument. The claim in their pleading was that the land in dispute forms part of a large expense of land founded by their ancestor called Agulu Nebuzo, who founded the land during his hunting expedition. Since it is in evidence that there is a faction in the Community, how appellants’ faction or the Agulu Awk Community came to own the land was not pleaded or proved. The appellant’s evidence is that the land in dispute is owned by Agulu Awka Community. The land has been an Arena for Customary ceremonies. Agulu village Community uses the land in dispute. The position then is that the appellants failed to plead, and prove, how their community or their faction of the Community came to own the land in dispute or the larger part of the land out of which the respondent allegedly received from her late Husband. The appellants thus failed to trace their root of title to the radical owner of the land. On this ground alone their claim must fail. In the circumstance, for the appellant to succeed in their claim in trespass and injunction they must show that they had better title to the land than the respondent. See Aromire V. Awayemi (1972) 2 S.C.1. The appellants as plaintiffs failed to do.

In the light of the findings of the learned trial judge which findings were adequately supported by the evidence on record, it is difficult to see how appellants could succeed. I answer issue 3 against the appellants and in favour of respondent.

Accordingly the 1st and 3rd issues in this appeal having been resolved against the appellants, it follows this appeal fails to that extent and is hereby dismissed, while the 2nd issue is allowed and succeeds.

I ordered no costs.

---

Other Citations: (2008)LCN/2702(CA)