Ezeokeke & Ors V. Uga & Ors (1962)

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TAYLOR, F.J

This is an appeal from the Judgment of Reynolds, J., dismissing the plaintiffs’ claims to the following:-

“(a) A declaration of title to the area known as “Agu Owerri” in Ikpanikita situate at Mkporogwu-Aeka Division.

(b) £300 damages for trespass, and

(c) An injunction to restrain further acts of trespass.”

There were eleven grounds of appeal filed with the Notice of Appeal but at the hearing of the appeal, Chief Okorodudu, who appeared for the appellants grouped his arguments under the following three heads:-

(i) That the respondents did not lay claim to a part of the area in dispute and therefore the trial Judge erred in not granting a declaration of title to at least that area.

(ii) That the learned trial Judge erred in placing reliance on the Native Court case Civil Suit 81/35 which was not between the parties to the present suit on appeal.

(iii) That the trial Judge erred in not visiting the locus.

The appellants are people of Mkporogwu and the respondents people of Uga. The area which is the subject matter of this appeal is the area edged pink on the appellants’ plan exhibit “A”. The respondents, have their plan exhibit “F” showing the area which they called Ikpa Nkita and which they say belongs to them. This latter area has been superimposed roughly on exhibit “A”, and though the greater part of it lies within exhibit “A”, it does not absorb the whole area in dispute. The net result is that an area to the east of that contained in exhibit “F” and to the north west of same are marked as “land of Nkpologu” and are not put in issue by the respondents. It is in respect of these areas that learned Counsel for the appellants urges that a declaration of title should have been made in the appellants’ favour.

Mr Iguh, for the respondents, however, contended that such a declaration could not be made because there were no fixed boundaries to these two portions of land. It is, of course, clear and well settled that if the appellants are to have a declaration of title to these areas, they must be sufficiently demarcated so as to enable any surveyor to “pin-point” the area. The respondents’ plan was filed with their Statement of Defence on the 18th July, 1958, and a copy was served on the appellants. The hearing of the suit did not commence till the 7th January, 1960, which gave the appellants sufficient time, had they desired to do so, to have had the defendants’ plan accurately superimposed on theirs. This has not been done and I am of the view that Mr. Iguh rightly contended that the boundaries of these two areas are too vague and indefinite to warrant a declaration of title being made in the appellant’s favour. This ground of appeal must fail.

On the second point as to the use made of the proceedings in Civil Suit 81/35 by the trial Judge, our attention was drawn to the following passage in the judgment, which reads thus:–

The defendants demonstrated in their plan exhibit “F” that the land litigated in Isuofia Native Court Suit 81/35 was north of the land claimed; and they relied upon the evidence given by one Mkpidike of Uga who was called by Mkpologwu as their witness and said “Aku Mkpologwu and ourselves buried bodies in the Ajofia bad bush (near palm tree). The bush is the boundary between the three of us. We planted araba trees running roughly east and west through Aja Ofia.

If one looks a little earlier on in the Judgment one will see that the trial Judge began by stating the case put up by the plaintiffs and then went on to state the case of the defendants, which ends with the passage just quoted. In the next paragraph he went on to say that:-

Having considered the whole evidence I have come to the conclusion that the plaintiffs have failed to prove their case in so far as it relates to the land claimed by the defendants.

The use to which the Trial Judge put the proceedings appears a little lower down in a passage which seems to have received no adverse comment from Counsel. It reads thus:

“The Native Court case relied upon by the plaintiffs so far from being in their favour is, in my opinion, more consistent with the defendants’ claim in that it showed that Uga land went as far north as Nwaja Ofia. It might also I think be inferred from the fact that in that suit Mkpologwu called an Uga man as their witness that Uga had a boundary with them near the land in dispute which is north of that now claimed. Indeed this was admitted by 3rd P.W. Onyejimbe Odugu.”

After looking at the sketch plan and the judgment in Suit 81/35 and the superimposition made of the area there in dispute on to exhibit “A” I would wholly endorse the conclusions reached by the trial Judge in the passage to which I have just made reference. It should, I think, be mentioned that the very proceedings, the user of which Counsel for the appellants has attacked was not only pleaded by the appellants in their Statement of Claim parag-raph 8, which reads thus:-

The land in dispute is lying parallel between the two towns of Ezenifite and Mkporogwu and was litigated over by the two towns in Isuofia Native Court Civil Suit S1/35 of 16th April, 1935, whereby the plaintiffs got judgment.

A representative of the Uga (defendants) people was a party to that case, and this suit will be founded upon.

but it was also tendered by their third witness. I would dismiss this ground as being without substance.

I now come to the last ground, which deals with the refusal of the trial Judge to visit the locus. Learned Counsel for the appellants contended that a great deal of the evidence on record was inaccurate and further that there were errors on the plans, which errors he contended were admitted by Defence Witness I, Mathias Chukwurah, the respondents’ surveyor, and that in view of these it was incumbent on the trial Judge to visit the locus. Whether a trial Judge will visit the locus in civil proceedings is a matter within his own discretion. If, of course, he feels that such a visit will enable him to get a better grasp of the evidence that has been adduced before him, he should visit the scene. In the present case, I cannot but agree with the trial Judge that such a visit would not have been of any assistance. To me, one of the major and insurmountable obstacles in the appellants’ way to success is the evidence adduced by both contestants as to the building of the road from Ihite Aku by the Nzehinte people, which road cuts through the centre of the land in dispute. On the evidence, the road was constructed about twenty years previous to the hearing and it was done without the permission of the appellants but with the consent of the respondents and the payment of some form of tribute. It is as difficult to imagine a neighbouring clan building a motorable road of some length through land of another without first seeking the permission of the owner, as it is to conceive how even if they did so, the owners would not take them to task. The trial Judge accepted the evidence on this point and it would seem to me conclusive against the appellants’ ownership.

This appeal is without substance and I would dismiss it with costs assessed at twenty-seven guineas in favour of the respondents.

Other Citation: (1962) LCN/0997(SC)