Ikedieze Okemiri & Ors V. Odoemenam Okezie Chukwueke (2016)
LawGlobal-Hub Lead Judgment Report
PETER OLABISI IGE, J.C.A.
This is an appeal against the judgment of the HIGH COURT OF ABIA STATE contained in the judgment of HON. JUSTICE ONUOHA A. K. OGWE delivered on 6th day of March, 2013.
The Respondent herein had as a CLAIMANT in the Court below for himself and as representing the members of CHUKWUEKE FAMILY OF AMUDA ELUAMA UZUAKOLI, in Suit NO. HUZ/7/2007 claimed against the Defendants now Appellants in the Court below for the following reliefs:
1. The sum of Four Hundred Million Naira (N400,000,000.00) being special and general damages for trespass to a piece or parcel of land in possession of the Plaintiffs situate and lying in an area of land traditionally known as and called ?UBIORO in AMUDA ELUAMA UZUAKOLI in BENDE L.G.A. ABIA STATE NIGERIA within the jurisdiction of the Court and in possession of the Plaintiff and which said land was the subject Supreme Court decision in Suit NO. SC/215/1984 decided in favour of the Plaintiffs. (sic).
2. An injunction permanently restraining the Defendants, their servants, agent and/or workmen from trespassing into the said piece of
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parcel of land or interfering with it in any manner whatsoever.?
The parties duly exchanged pleadings. However the Defendants later on in the proceedings amended their Statement of Defence wherein they set up a Counter-Claim as follows:
?COUNTER ? CLAIM
The Defendants Counter-Claim against the Claimant as follows:
(a) The sum of N500,000.00 being damages for trespass.
(b) An Order of perpetual injunction restraining the Claimant, his agents, servants and or workmen from further entry upon or from otherwise dealing with the land known as and called ?UZO MKPEM UGA? lying, being and situate at Amuda, Eluama, Uzuakoli within jurisdiction of this honorable Court: in a manner inconsistent with the interests, rights or title of the Defendants
PARTICULARS OF COUNTER ? CLAIM
The Defendants, rely for this Counter ? Claim on the facts averred in the Statement of Defence.?
The Claimant (now Respondent) filed DEFENCE TO COUNTER ? CLAIM OF THE DEFENDANT. It is dated 20/9/2010. Earlier in 2008 the Respondent filed Reply to the Statement of Defence of the Appellant before the
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Appellants amended their Statement of Defence.
The matter proceeded to trial. The Claimant called four (4) witnesses while the Defendants called three witnesses. After the addresses of learned Counsel, the learned trial Judge gave a considered judgment in the suit on 6th day of March, 2013. (Pages 294 ? 306 of the record).
The Learned trial Judge found as follows:
?The state of pleadings and evidence are that the Defendants did not prove their Counter-Claim. At any rate, the Counter-Claim is based on the erroneous assumption or basis that land in dispute is Uzo Mkpeu Uga and I have made findings of fact that it is indeed Ubi Oro and not Nkpeu Uga. The Supreme Court has already sealed the fate of Defendants concerning Ubi Oro so there is no how they can succeed in getting title over it when the Supreme Court dismissed their claim and held that Ubi Oro is not a communal land. Now they are claiming that Ubi Oro by a new name they gave it is a communally managed land. I lack the competence to grant title to a party whose claim has been dismissed by the Supreme Court. It is trite that when a claim is made for trespass and perpetual
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injunction, title is in issue.
Moreover the witnesses of Defendants gave evidence in support of Claimants? case. They admitted the features of the Ubi Oro. I therefore re-iterate that what is in dispute here is Ubi Oro land and not Uzo Nkpeu Uga.
So, the Defendants are stopped from re-litigating it, in all, I find for Claimants and order as follows:-
(1) The sum of Two Million Naira being general damages for trespass on 11/4/2007 to the parcel of land in possession of Claimants called Ubi Oro situate at Amuda Eluama Uzuakoli which was the subject matter of SC/215/1984.
(2) An Order of injunction permanently restraining the Defendants, their servants, agents and/or workmen from trespassing into the said parcel of land or in anyway interfering with it.
COUNTER-CLAIM
I have already discussed and considered the Counter-claim.
The Defendants Counter ?claimed as follows:-
(a) The sum of #500,000 being damages for trespass.
(b) An order of perpetual injunction restraining the Claimants, his agents, servants and/or workmen from further entry upon or from otherwise dealing with the ?Uzo Nkpeu Uga?
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land situate at Amuda, Eluama, Uzakoli.
In the particulars, Defendants averred that they will rely on the facts in the Statement of Defence. I had already discussed this issue that Claimants filed a Defence to the Counter-Claim and Defendants failed to file a rejoinder and the effect of that of that failure. For the reasons I gave above in the main judgment, Defendants did not prove their Counter-Claim. It is hereby dismissed in its entirety.?
The Appellants were aggrieved by the findings and judgment of the Lower Court and have vide their NOTICE OF APPEAL dated and filed on 26th day of April, 2013 appealed to this Court on six grounds which without their particulars are as follows:
Ground 1
?That the learned trial Judge erred in law by holding that that failure of the Appellants to file a rejoinder to paragraph 7 (i) ? (iv) of the Respondent?s defence to Counter-Claim amounted to an admission of the said paragraphs of the defence to Counter-Claim whereas the averments in paragraph 7 (i) ? (iv) of the defence to Counter-Claim were not new issues which required a rejoinder.
Ground 2
That the learned
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trial Judge erred in law by holding that the Appellants did not file any Survey Plan which failure amounted to admission and acceptance of the correctness of Respondent?s Plan.
Ground 3
That the learned Judge erred in law by holding that the features in Exhibit ?A? show that the land in dispute in HU/53/66 is the same as the land in dispute in this case.
Ground 4
That the learned trial Judge erred in law by finding Appellants liable in trespass in favour of the Respondent who sued in a representative capacity for himself and on behalf of Chukwueke family of Amuda, Eluama, Uzuakoli, whereas there was no evidence of trespass by Appellants into any land in possession of Chukwueke family of Amuda, Uzuakoli.
Ground 5
That the learned trial Judge erred in law by holding that Appellants? witnesses testified in favour of the Respondent?s case and thus dismissed the Appellants? Counter-Claim.
Ground 6
That the learned trial Judge erred in law by holding that the land litigated in Suit NO. HU/53/66 which was determined on appeal by the Supreme Court in Appeal NO. SC/215/1984 is the same as the
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land litigated in this case notwithstanding that the boundaries of the lands in dispute in the two cases are not the same.?
The Appellants filed their Brief of Argument dated 18th day of August, 2014 while the Respondent?s Brief of Argument dated 10th day of December, 2014 was filed on the same date. The appeal was heard on 12th day of April, 2016 when the Learned Counsel to the parties adopted their Briefs of Argument.
The Learned Counsel to the Appellant Chief NNAMDI D. UCHENDU distilled five Issues for determination of the appeal viz:
1. Whether the failure of the Appellants to file a Rejoinder to the Respondent?s Defence to Counter Claim on the question of the identity of the land in dispute amounted to an admission by Appellants of the averments in the Defence to the Counter-Claim regarding the identity of the land in dispute. (Ground 1).
2. Whether the finding by the learned trial Judge that the Appellants filed no plan of the land in dispute consequent upon which the appellants must be taken as having admitted and accepted the correctness of the Respondent?s Plan can be justified having regard to the pleading
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and evidence adduced in the case. (Ground 2).
3. Whether the finding by the Learned trial Judge that the features in the Survey Plan filed by the Respondent Exhibit ?A? ? show that the land in dispute in this case is the same as in Suit HU/53/66 can be justified having regard to the State of the Pleadings and evidence adduced on both sides. (Grounds 3 and 6).
4. Whether the Learned trial Judge was right to find Appellants liable in trespass to the Respondent who sued in a representative capacity as representing his family in the absence of any evidence that the Appellants trespassed into any land in the possession of the Respondent?s family. (Ground 4).
5. Whether the finding of the learned trial Judge that the Appellants? witnesses testified in favour of the Respondent and negativing the Appellants? Counter-Claim can be justified having regard to the evidence at the trial. (Ground 5).
On his part the Learned Senior Counsel to the Respondent Dr. I. N. IJIOMAH, SAN, also nominated five Issues for determination of the appeal thus:
1. Whether the trial Judge was right in his conclusion in his Judgment
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wherein the said:
?I agree with the Learned Senior Counsel and hold that failure of the Defendants to file a rejoinder is by the Rules of pleadings an admission of the Claimant?s said averment in paragraph 7 (i) ? (v) of the Defence to the Counter ? Claim.? (Ground 1).
2. Whether the trial Judge was right in his conclusion in his judgment wherein he held that:
?It is to be noted that whereas the Claimants filed a dispute Survey Plan tendered as Exhibit ?A? and ?D? contain the same features and so relate to the same land. The Defendants? failure to file a plan is an admission of and the acceptance of the correctness of Claimants? Plan. (Ground 2).
3. Whether the trial Judge was right when he held that the features in Exhibit ?A? (the dispute Survey Plan filed by the Respondents in this Case) shows that the land in dispute in HU/53/66 (which was litigated up to the Supreme Court in SC/215/84) is the same as the land in dispute in this case. (Grounds 3 & 6).
4. Whether the Learned trial Judge was right in finding the Defendants/Appellants liable in
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trespass to the UBI ORO Land in dispute in this case having regard to the evidence before the Court. (Ground 4).
5. Whether the Learned trial Judge was right in dismissing the Appellants Counter ? Claim by his reasoning wherein he said that:
?the witnesses of Defendants gave evidence in support of Claimant?s Case. They admitted the features of Ubi Oro. I therefore re-iterate that what is in dispute here is Ubi Oro Land and not UZO NKPEM UGA.? (Ground 5).
One can see that shun of all the embellishment, a recast of the five issues distilled by the Appellants and the issues formulated by the Respondent are the same with that of the Appellants. This appeal can therefore be considered on the five issues distilled by the Appellants.
?ISSUE 1
Whether the failure of the Appellants to file a Rejoinder to the Respondent?s Defence to Counter-Claim on the question of the identity of the land in dispute amounted to an admission by the Appellants of the averments in the defence to the Counter-Claim regarding the identity of the land in dispute. (Ground 1).
?The Learned Counsel to the Appellants Chief N. D. Uchendu made
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reference to Order 33 Rule 7 of the Abia State High court (Civil Procedure) Rules, 2009 which provides that:
?Where there is a reply and the defendant desires to file a rejoinder, he shall file it within 7 days from the service of the reply.?
to submit that the said Rules of Court do not provide for the contents of a Rejoinder like the contents of Statement of Claim and Statement of Defence that are clearly provided for in Orders 29, 30 and 31 of the said Abia State High Court (Civil Procedure) Rules 2009.
That what ignites the filing of a rejoinder is the ?desire? of the Defendant upon service of a Reply on the Defendant. That ORDER 29 Rule 2 provides that:
?where a reply is filed, then at the expiration of 14 days from the Service of same and there is no pleading subsequent to reply to wit of rejoinder, then pleadings shall be deemed closed.?
That in this case, once the Respondent filed his defence to the Counter-Claim, there was no requirement of a rejoinder. That a Rejoinder is not an opposite pleading subsequent to defence to Counter-Claim. That it is only appropriate pleading subsequent to a
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Reply.
That the Appellants stoutly debunked the boundaries and features on the land in disputes as averred in paragraphs 5, 6 and 21 of the Statement of Claim in their own Statement of Defence paragraphs 4, 14, 15 and 17 thereof. That the Appellants clearly described the boundaries of the land in dispute and pleaded Plan No. ASA/IMD236/89 used in HU/50/89. The Learned Counsel also relied on paragraphs 13 and 14 of the Statement of Defence. That there is nothing in the Reply relating to the identity of the land in dispute which required the filing of a Rejoinder by the Appellants. On what a Reply does in pleadings, he relied on the cases of:
1. OLLY VS. TUNJI (2012) ALL FWLR (PART 654) 39 at 67 B ? D (C ?A).
2. BAKARE VS. IBRAHIM (1973) 6 SC 205.
3. ISHOLA VS. SOCIETE GENERALE BANK (NIG) LTD. (1997) 2 SCNJ 1 and ORDER 28 RULE 9 of the ABIA STATE High Court (Civil Procedure) Rules 2009.
That the trial Judge was wrong to expect a rejoinder to the Respondent?s defence to Counter-Claim. That the identity of the land had been pointedly and specifically denied by the Appellants in their Statement of Defence.
?In
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response to the above submissions, the Learned Senior Counsel to the Respondent contended that the Appellants submission is not correct when they argued that once a Plaintiff filed his defence to Counter-Claim, there was no requirements of a Rejoinder. He relied on the cases of:
1. FBN PLC V. FAIKO (NIG.) LTD. (2008) ALL FWLR (Pt. 416) 1960 at 1979 ? 1972 per Alagoa, JCA.
2. ALI V. SALIHU (2011) 1 NWLR (PT. 1228) 227 at 251 H.
He also relied on Order 32 Rule 2 of the Abia State High Court (Civil Procedure) Rules which provides:
?Where a Counter-Claim is pleaded, reply thereto is called a defence to Counter-Claim and shall be subject to the Rules applicable to defence.?
The Learned Silk opined that where for instance a Defendant in his Statement of Defence introduced fresh facts in his pleadings, the Claimant is expected to file a Reply to the Statement of Defence and in the same vein if a Claimant files Defence to the Counter ? Claim of Defendant/Counter-Claimant and introduced fresh facts into the pleadings by such defence to Counter ? Claim, the Counter Clamant is expected to file a rejoinder to the
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defence to Counter-Claim. He relied on the case of ALI V. SALIHU Supra page 253 para, C ? H. That the pleadings of the Defendant in the Counter-Claim cannot be said to have complied fully with the Law with regard to pleadings.
That paragraph 7 (i) ? (vi) of Defence to Counter-Claim introduced fresh facts into the pleading, the Appellants were required to traverse the said pleading by filing a Rejoinder.
That Order 33 Rule 7 of Abia Rules does not apply to Counter-Claim in view of ORDER 33 Rule 2. That it arises from exchange of Statement of Claim and Defence between the Claimant and the Defendant. That the same Order does not apply to filing of a rejoinder by a defendant Counter-Claimant. He relied on Order 32 Rules of the said Abia Rules as talking of equivalent of a Reply by a Claimant to a Statement of Defence. That a Rejoinder is the Defendant/Counter-Claimant?s reaction to the defence of the Claimant to the Counter-Claim as envisaged by Order 32 Rule 2.
?I believe it is here relevant to find out what a ?Reply? and a ?Rejoinder? connote. The Ninth Edition of Black?s Law Dictionary provides
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meanings to them on page 1414 as follows:
?Civil Procedure in Federal practice, the Plaintiff?s response to the Defendant?s Counter-Claim (or, by Court Order, to the defendant?s or a third party?s answer).
2. Common Law pleading. The Plaintiff?s response to the defendant?s plea or answer. The reply is the Plaintiff?s Second pleading, and it is followed by the defendant?s rejoinder.?
On page 1401 the Learned Author said concerning ?Rejoinder? thus:
?Common-Law pleading. The defendant?s answer to the Plaintiff?s reply.?
I also call in aid the position of Late FIDELIS NWADIALO, SAN in his Book ? Civil Procedure in Nigeria 2nd Edition pages 404 ? 405 where the Late Senior Counsel said:
?It is not often that there is need for a reply and when one is filed, the pleadings almost invariably close with it. However, other pleadings subsequent to a reply may be filed. Each of these may be filed for the same reasons for which a Plaintiff may file a reply. Thus, a defendant may file a further pleading in order to deal with new
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matters that might have been raised in the Plaintiff?s reply. A defendant?s pleadings which he files in answer to a reply is called a rejoinder.
In the same way the Plaintiff may answer the rejoinder by a surrejoinder which, in turn, may still be followed by a rebutter by the defendant and this by a surrebutter by the Plaintiff. In practice, none of these pleadings is filed, and if ever any of them is necessary, it can only be filed with the Leave of the Court.?
The apex Court has in numerous cases espoused and expounded the real import, function, meaning and scope of a ?Reply? as part of pleadings in Civil Proceedings. Suffice it to refer to the case of DR. RASAKI OSHODI & ORS. VS. YISA OSENI EYIFUNMI & ANOR. (2000) 13 NWLR (PART 684) 298 at 326 G ? H to 327 A ?C per IGUH, JSC who said:
?The main function of pleadings is to ascertain with as much certainty as possible the various matter that are actually in dispute and those in which there are agreement between the parties and thus to appraise the opposing party in the action of the case the pleader is making so as to avoid any surprise
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at the hearing and to ascertain the issue or issues in controversy between the parties. In this regard, the parties will be enabled to settle beforehand the evidence it shall adduce at the hearing. Pleadings are closed when parties come to issue. If both the Statement of Claim and the Statement of Defence do not bring the parties to issue on all the claims, the plaintiff shall file a reply. Where no Counter-Claim, as in the present action, is filed, further pleadings by way of a reply to the Statement of Defence is generally unnecessary if the sole purpose is to deny the averments contained in the defendant?s Statement of Defence. See Aziz Akeredolu and others vs. Lasisi Akinremi and Others (1989) 3 NWLR (Part 108) 164 at 172. However, a reply may be filed to plead relevant additional facts which will make any particular defence pleaded in the Statement of defence untenable or negate the application of such defence.
A reply is the defence of the Plaintiff to the Counter-Claim of the defendant or to the new facts raised by the defendant in his defence to the plaintiff?s Statement of Claim and shall therefore be filed to answer the
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defendant?s averment in his Counter-Claim or to such new facts that have been raised in the Statement of Defence. I think it may also be said that as a general rule, where because of the defence filed, the plaintiff proposes to lead evidence in rebuttal or to raise issues of fact not arising out of the two previous pleadings, he shall in such circumstances, file a reply as he may not lead evidence of any material facts he had failed to aver in his pleadings.
See Bakare and Another vs. Ibrahim (1973) 6 S.C. 205.
(Underlined mine).
I am therefore of the firm view that Rejoinder is a pleading subsequent to a Reply to Statement of Defence or Defence to Counter-Claim normally filed by a Defendant/Counter ? Claimant or a Defendant even where there is no Counter-Claim. In a matter subjoined with a Counter-Claim, the Counter-Claimant is a Plaintiff in his or her own right in the Counter-Claim and all incidence of pleadings is also applicable as in an action without a Counter-Claim from the Defendant.
?In the case on hand in this appeal, the first pleading of the Appellant is the Counter-Claim while his second pleading is a Rejoinder to
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the Reply of the main Plaintiff as his Reply and Defence to the Counter-Claim. The Counter-Claimant is under a duty to file a Rejoinder if new facts are introduced in the Reply of the Claimant bearing in mind the provisions of Order 32 Rule 2 and ORDER 33 RULE 7 of the ABIA STATE HIGH COURT (Civil Procedure) Rules 2001.
?The Claimant had in his Reply to the Appellants paragraphs 6 ? 7 (i) ? (vi) thereof pleaded as follows:
?6. The Claimant will at the hearing invite this Honourable Court to visit locus-in- quo in Order to see for himself the features on the land trespassed into by the Defendants as aforesaid and compare same with the features on the land the subject of Suit NO: HU/53/66 aforesaid.
7. Some of these features are:
(i) The track road leading from Amuda Eluama Uzuakoli to Isiegbu Ozuitem and which track road runs across the land in dispute in HU/53/66.
(ii) The Uzo Mkpem Uga to Isiegbu Ozuitem Road which runs across the land in dispute in Suit NO: HU/53/66. This Uzo Mkpam Uga Road crossed the aforesaid road leading from amuda Eluama Uzuakoli to Isiegbu Ozuitem Junction at a point on the land in dispute.
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There is also the road from Uzuakoli Market to Isiegbu Ozuitem, which forms a boundary the Ubi Oro Land in dispute HU/53/66.
(iii) The house of Hon. Justice Obinnaya Okezie of the Claimants family is on the Ubi Oro Land of the Claimant, the road from Amuda Uzuakoli to Isiegu Ozuitem runs between the Ministry of Works Water Tanker on the Ubi Oro Land and the aforesaid house of Justice Okezie.
(iv) There is a water tank built by the Ministry of Works in 1965 on the land the subject of Suit NO. HU/53/66.
(v) There are also Cashew and Palm trees plantations on the land the subject of HU/53/66.
(vi) All the aforesaid features shown in the Survey Plan NO. EC/61/67 in Suit NO. HU/53/66 are present in the land trespassed into by the Defendants and which is the cause of this action they are visibly shown on Survey Plan NO. SKS/ABDS/07/2007 of 10/12/2007 filed with the Claimant?s Statement of Claim in this case.?
?I am of the view that the Claimant now Respondent raised serious issues relating to the features and recent events on the land in dispute. The Appellants were under a duty to file a Rejoinder to the Reply and Defence to
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their Counter ?Claim so that issues would have been joined on the fresh facts introduced in paragraph 7(i) ? (vi) of the Claimant?s Reply to the Counter-Claim. The Learned trial Judge was right in his holding that the failure of the Appellants to file a rejoinder is fatal to Appellants Case.
Also fatal to the Appellants Case is the evidence of the 1st Appellant who testified as DW1 on pages 237 ? 238 of the record. He admitted that the land in dispute in HU/53/66 is UBI ORO and that it is not the land in dispute in the present action yet he testified further:
?There is a tank built by M.O.W. in 1965 on the land which went to the Supreme Court. There is a Cashew Plantation on the Land that went to the Supreme Court.?
The 1st Appellant also testified on the same page 238 of the record thus:
?I know the residence of Hon. Justice Okezie. His said house is on Ubioro land ? the land that went to the Supreme Court.?
It is true that in a case for declaration of title or for trespass to land, the Claimant must rely on the strength of his case and not on the weakness of the defence. There is a
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firm and lucid exception to that general and well established principle of Law relating to burden of proof in Claim relating to title and possession to land. See:
1. MR. AUDU OTUKPO VS. APA JOHN & ANOR. (2012) 7 NWLR (PART 1299) 357 at 376 H to 377 A per ONNOGHEN, JSC.
?It is settled law that a Plaintiff in an action for declaration of title to land must succeed on the strength of his case and not on the weakness of the defence though where the case of the defence support that of the Plaintiff, the Plaintiff can take advantage of same in establishing his claim. See Woluchem vs Gudi (1981) 5 SC 294 Mogaji vs. Cadbury Nig. Ltd (1985) 2 NWLR (Pt.7) 393.?
2. NELSON NWOSU ONWUGBUFOR & ORS. VS. HERBERT OKOYE & ORS. (1996) 1 SCNJ 1 at 23 where IGUH, JSC said:
?It must however be emphasized that the applicable principle is that a Plaintiff when claiming declaration of title must succeed on the strength of his own case and not on the weakness of the defence although where any aspect of the defendant?s case supports the Plaintiff?s case, the plaintiff will not be deprived of the advantage of such support. See
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Kodilinye vs Mbanefo Odu 2 WACA 336 at 337, Cobblah vs Gbeke 12 W.A.C.A 294 Akinola vs Oluwo (1962) 1 ALL NLR 224 AT PAGE 225, NWAGBOGU vs CHIEF NNOLI IBEZIAKO (1972) 1 ALL NLR (Pt. 2) 137.?
I am of the firm view and it is glaring from the fatal admissions of the Appellants that the Learned trial Judge was right in his findings. The Respondent is fully entitled to rely upon the admissions of DW1 and take advantage of it. See:
1. CHIEF FALADE ONISAODU & ANOR. VS. CHIEF ASUNMO ELEWUJU & ANOR. (2006) 13 NWLR (PT. 998) 517 at 529H to 530A where KATSINA ? ALU, JSC (Later CJN RTD) said:
?The plaintiffs led evidence in line with their pleadings and so established a prima facie case. As I have already pointed out, the evidence of D.W.2, called by the defendants, to the effect that the land in question was owned by the plaintiffs? family strengthened the plaintiffs? case. This was an admission against the interest of the defendants. The said admission against interest is relevant and admissible evidence: See Ojiegbe & Ors. V. Okwaranyia & Ors. (1962) All NLR 605; (1962) 2 SCNLR 358. I think it is pertinent to
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state here that the defendants did not treat their witness (DW2) as a hostile witness. In such a situation the evidence must be treated as an admission upon which the plaintiffs are entitled to rely as further reinforcement of his claim. The effect of the admission is that the learned trial Judge was wrong in giving judgment for the defendants. The admission in my judgment was fatal to the case of the defendants – appellants.
2. MR. SUNDAY ADEGBITE TAIWO VS. SERAH ADEGBORO & ANOR. (2011) 11 NWLR (PART 1259) 562 at 583 H to 584 A-D per RHODES -VIVOUR, JSC.
I hereby resolve Issue 1 against the Appellants.
ISSUE 2
Whether the finding by the Learned trial Judge that the Appellants filed no Plan of the land in dispute consequent upon which the Appellants must be taken as having admitted and accepted the correctness of Respondent’s Plan can be justified having regard to the pleadings and evidence adduced. (Ground 2).
The Learned Counsel to the Appellants draws strength from the Black’s Law Dictionary 9th Edition page 704 as to the meaning of the word ‘file’? which according to him means to
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deliver a legal document to the Court Clerk or record custodians for placement into the official record. That Statement of Defence is a Legal document and that within the contemplation of Abia State High Court (Civil Procedure) Rule 8 (1) thereof, the Appellants listed their Survey Plan as Item 3 and it is the Survey Plan of the Plaintiff in Suit HU/50/89. That the Survey Plan was pleaded in paragraph 14 of the Statement of Defence.
That it was therefore wrong for the trial Court to have held that Appellants did not file any Survey Plan thereby they accepted the correctness of Claimant’?s Survey Plan. That the Appellants denied the correctness of Exhibit A. That CW1, the Respondent admitted under cross – examination that the land in dispute is bounded by Uzo Mkpen Uga land thus controverting, according to Appellant?s Learned Counsel, his Plan Exhibit ?A at page 230 of the record.
That notwithstanding the admission of CW1 that UZO NKPEM UDA land shared a common boundary with the land in dispute, the trial Judge held the contrary. That the finding of the trial Judge is perverse because they do not flow from the
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evidence adduced at the trial. That trial Judge ignored the obvious that Appellants filed a Plan and that CW1 contradicted his own plan. He relied on the cases of:
1. RABIU VS. KANO STATE (1980) F. N. R. 590 at 528 (sic).
2. ATOLAGBE VS. SHOKUN (1985) 1 NWLR (PART 2) 360.
3. AGBOMEJI VS. BAKARE (1998) 9 NWLR (PART 564) 1.
4. SANI VS. LERE (2010) ALL FWLR (Pt. 545) 335 at 334. (sic).
He urged the Court to resolve Issue 2 in favour of Appellants.
?In response the Learned Silk to the Respondent contended that the Plan pleaded and tendered as Exhibit ?F? by the Appellant (Survey Plan NO. ASA/IMD 263/89 dated 30/5/1990 in Suit NO. HU/50/89 cannot be a dispute Plan in this action HUZ/7/2007. That the parties in that action HU/50/89 are different from parties in the present Suit HUZ/7/2007. That the cause of action in HU/50/89 is also different from the cause of action in HUZ/7/2007. That a dispute Survey Plan used in one Suit cannot be translated into another Suit as a dispute Survey Plan as Appellants have erroneously done in this case. That the purpose of a dispute Survey Plan is to delineate the land in dispute and
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identify it by showing its features and boundaries in relation to the cause of action in the case relying on the cases of
(1) AWOTE V. OWODUNNI (NO. 2) (1987) 22 NWLR (PART 57) 366.
(2) OGUN VS. AKINYELU (2005) WRN 41at 63.
That the Respondent filed Dispute Plan Exhibit ?A? which interposed the dispute Survey Plan NO. EC/81/67 in Suit HU/53/66 tendered as Exhibit ?D? in the present Suit. That Exhibit ?A? married the land in dispute in this case with the land in dispute in HU/53/66. That the Appellants dispute Survey Plan No. JJ/78/66 of 26/11/1966 in Suit HU/53/66 over the ?UBI ORO? land was tendered as exhibit ?E? in this case. That if they had filed a dispute Plan, they would have interposed such dispute Plan on Exhibits ?E? and ?F?. That the trial Judge traced the lapse in the Appellant?s Case on page 303 lines 1 ? 3 of the record. He also relied on the findings of the trial Judge on page 302 of the record. That there is no contradiction in the evidence of CW1 and Exhibit ?A?.
?A decision of a trial Court is said to be perversed when
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the finding of trial Court ignores the facts or evidence before it and when considered as a whole, it amounts to a miscarriage of justice. Where it is evident that the decision of a Court is perverse, the Appellate Court will interfere and set aside such a decision.
See (1) N.E.P.A. VS. OSOSANYA (2004) ISC (PT. 1) 159.
(2) ADIELE IHUNWO VS. JOHNSON IHUNWO & ORS. (2013) 8 NWLR (PART 1357) 550 at 568 G ? H to 569 A per ARIWOOLA, JSC who said:
?In Moses Okhuarobo & Ors. v. Chief Aigbe (2002) 13 SCM 105 at 133; (2002) 9 NWLR (Pt. 771) 29 at 85 paras. D ? F, this Court, per Ayoola, JSC, opined that:
?It is not only when there is no evidence to support a decision that the decision can be held perverse. Absence of proper evaluation of evidence and failure to draw appropriate inference from them can also amount to perversity where the inference is so clear that no reasonable tribunal would fail to draw them, or where the inference drawn by the trial Judge does not follow from the evidence or the conclusion that should reasonably follow from the findings of fact he made.?
(3) SEGUN ADEBIYI VS. THE
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STATE (2016) 8 NWLR (PART 1515) 459 at 474 D ? F per NWEZE, JSC who said:
?For this purpose, a Court?s finding is said to be perverse if, inter alia, it took into account certain matters which it ought not to have considered or where it shut its eyes to the obvious or proved facts etc., Baridam v. State (1994) 1 NWLR (Pt. 320) 250, 256; Udengwu v. Uzuegbu (2003) 13 NWLR (pt. 836) 136, 152; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360, 375; Nwosu v. Board of Customs and Excise (1988) 5 NWLR (Pt. 93) 225.
In such a case, this Court is bound to interfere and set aside such a decision, N.E.P.A. v. Ososanya (2004) 1 SC (Pt. 1) 159, (2004) 5 NWLR (Pt. 867) 607; Newbreed Org. Ltd. v. Erhomosele (2006) 5 NWLR (Pt. 974) 499.?
The Appellants did not properly read the finding of the Learned trial Judge concerning failure on the part of Appellants to file any plan. The Learned trial Judge did not say that the Appellants did not file any plan. What the trial Judge said is this:
?It is to be noted that whereas the Claimants filed a dispute Survey Plan tendered as Exhibit ?A? the Defendants did not file any.?<br< p=””
</br<
29
The reasonable and logical inference from what the trial Judge said is that Appellants did not file DISPUTE SURVEY PLAN as in Exhibit ?A? tendered by the Respondent (Claimant). This is very correct because the Survey Plan pleaded in paragraph 14 of the Amended Statement of Defence page 194 of the record is ?SURVEY PLAN NO. ASA/IMD/263/89 filed in Suit No. HU/50/89 OSISIOGU KANU ANUM VS. HON. JUSTICE OBINNAYA OKEZIE?. The Defendant tendered it as Exhibit ?F?. It has no bearing with the present Suit in that it is not a Dispute Survey Plan of the Current disputes between the parties on the Land.
Exhibit ?E? was the Dispute Plan in respect of HU/53/66 BETWEEN ADIBE NWANKWO & ORS. (for themselves and representing the people of AMUDA ELUAMA, UZUAKOLI VS. OKORONKWO CHUKWUEKE & ANOR. OF AMUDA ELUAMA, UZUAKOLI. It was Plan No. JJ78/66 of 10/12/66. Exhibit ?A? tendered by the Respondent was made as Dispute Survey Plan in Suit HUZ/7/2007 between ODOEMENEM OKEZIE CHUKWUEKE VS. IKEDIEZE OKEMIRI & ORS. There is no such Dispute Survey Plan by the Appellants in this case.
?The Learned trial
30
Judge diligently examined, assessed and evaluated the various Survey Plans tendered before him and justifiably held and found as follows:
?The Defendants also pleaded that the land in dispute is delineated and shown in Survey Plan No. ASA/IMD/263/89 filed in Suit No. HU/50/89? (Paragraph 14 Amended Statement of Defence). This said Survey Plan was tendered by Defendants as Exhibit ?F?. In it the land in dispute called Uzo Nkpeu Uga is verged red, written it all the features of Ubi Oro including the water works (MOW) supply tank are shown. This same main feature relied upon heavily by parties was shown by Defendants in Exhibit ?E? as being in Ubi Oro.
Since Exhibit ?E? was first in time having been used in HU/53/66, it is not possible and not part of the case of Defendants that the MOW water tanks is in both Ubi Oro and Uzo Nkpeu Uga. The Defendants therefore lied when they claimed that the land in dispute in HU/53/66 is different from land now in dispute.
They were being mischievous and their cleverly woven lies were punctured by them. The good thing about using Survey Plans in land disputes to
31
demarcate and identify land is that they give a reasonable measure of certainty since they have features and coordinates.
When, therefore a case has been fought using Survey Plans up until the Supreme Court and that venerable Court has given a definite decision devoid of prevarication and uncertainty, that is the end of human litigation in Nigeria. The Supreme Court is the final Court and their decisions unquestionable. It will smirk of irresponsibility for anybody to assert any party to rubbish a Supreme Court decision as Defendants have tried to do. They have lost at the highest Court of the land and so be it. There must be an end to litigation. They cannot go back to the land and plead that it is a different land. Yet they failed to show the different land in a Survey Plan and to situate it against the one for which judgment has been given by the Supreme Court. Their witnesses admitted the pleaded features that show that the land in dispute is Ubi Oro over which judgment was given in SC/215/1984.
I therefore without any hesitation resolve issue one in both Addresses against the Defendants.?
?I have closely examined the Survey Plans
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Exhibits ?A?, ?B?, ?E? and ?F? and I am fully in agreement with the findings of the Learned trial Judge based on the Survey Plans tendered and evidence proffered by the parties at the trial Court. The findings of the trial Court is not perversed. The findings are in tandem with the evidence on the printed record.
Issue 2 is resolved against the Appellants.
ISSUE 3
Whether the finding by the Learned trial Judge that the features in the Survey Plan filed by the Respondent, Exhibit ?A? show that the land in dispute in this case is the same as in Suit No. HU/53/66 can be justified having regard to the State of the pleadings and evidence adduced on both sides. (Grounds 3 and 6).
?The Learned Counsel to the Appellants referred to Exhibit ?A? tendered by the Respondent as the dispute Survey Plan allegedly, according to the Learned Counsel, depicting the land in dispute and Exhibits ?D? and ?E?. That CW1 stated that the land in dispute is up to 30 hectares but that Obaseki, JSC in his judgment in SC/215/1984 said the land was not more than 2 acres. That
33
the Respondent admitted the land is small and it was 2acres yet in his witness Statement on Oath, he described the land as 30 hectares even in his defence to the Counter-Claim of the Appellants.
That the judgment of trial Court ought to be in line with what Obaseki, JSC said. That CW4 stated that the land in dispute is OKE OHIA EKPEMUDA which shares a common boundary with the land in dispute in HU/53/66. He relied on page 297 of the record. That Exhibit ?A? is not bounded by lands of the boundary neighbours enumerated in preceding paragraph.
That the trial Judge was wrong in holding that what Obaseki, JSC said about the size of the land does not assist the Defendants in this Case. That the evidence adduced by Respondent?s witnesses are at variance with the Survey Plan regarding the identity of land in dispute.
The Appellants therefore submitted that it cannot be said that a party had proved the identity of the land consequent upon which the party?s case should fail according to Appellant. He relied on SANI vs. LERE Supra. That the Learned trial?s finding that the land litigated as per Appeal SC/215/1984 is the same
34
as the one in this Suit is unfounded on the totality of evidence led at the trial.
In his reaction the Learned Silk to the Respondent stated that the fact in issue in this case is whether UBI ORO Land that was litigated up to Supreme Court in SC/215/84 is the same as the land in dispute. He contended that the Respondent averred the features of UBI ORO Land at paragraph 7 (i) ? (vi) of their Defence to Counter-Claim of the Defendants. That the Defendants/Appellants admitted the said features of UBI ORO Land. They relied on the evidence and admission of DW1 (IKEDIEZE OKEMIRI) under Cross-examination.
That the issue whether the features in Exhibit ?A? shows the land in dispute in HU/53/66 is the same as the land in dispute in this case was correctly settled by the trial Judge in his judgment on page 303 of the record. That the Appellants are mixing up the size of the land with features on the land in dispute.
In the alternative, the Learned Counsel submitted that Issue Three is of no help to the Appellants concerning the size of the land. He relied on the finding of trial Judge on page 3011.
?I am of the view that my findings
35
affirming the decision of the trial Court on matters relating to Survey Plans under Issues 1 and 2 are complete answers to the complaints embedded under Issue 3 by the Appellants. The Appellants? leading witness DW1 (IKEDIEZE OKEMIRI) wholesale admissions of all the features pleaded in respect of the land in dispute have already cut the foundation of all the points canvassed under Issue 3. The arguments of Learned Counsel to the Appellants are all exercise in futility or fire brigade approach to an issue that is clearly against the Appellants by the Appellants? showing through their witnesses and the documentary evidence before the Court of trial. The issue really is not about the size of the land but the ownership of the land in dispute. In any event, the parties to this appeal are quite aware of the area of the land in dispute on the ground with or without the Survey Plans as parties are fully abreast of the land and that was the reason for the evidence of the DW1 under Cross-examination wherein he admitted the crucial aspect of the Respondent?s Case. He told the Court that the land in dispute is the same land in dispute in HU/53/66 that
36
results into SC/215/1984 decided in favour of the Respondents.
As for the pronouncement of Obaseki, JSC heavily relied upon by Appellants, the finding of the trial Judge on it is quite opposite. The trial Judge admirably said:
?Chief Uchendu made heavy weather of the size of the land in SC/12C/1984 being 2 acres and even had to rely heavily on the supporting contributory judgment of Obaseki, JSC as if he had forgotten that whatever Obaseki, JSC said about the size was not the judgment of the Supreme Court but the leading judgment by Bello, JSC (as he then was) was the judgment of that Court.
But from the evidence, this Court was not told the size of what Claimants are claiming or the size of what was claimed in HU/53/66. Moreover, some of the witnesses did not know what amounted to 2 acres. One witness equated an acre to a plot. So what Obaseki, JSC said about the size does not assist the Defendants on this case.
The size of the land in dispute is as shown in the dispute Survey Plan and not in anybody?s submission.?
Page 301 of the record.
Issue 3 is resolved against the Appellants.
ISSUE 4
Whether the
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Learned trial Judge was right to find Appellants liable in trespass to the Respondent who sued in a representative capacity as representing his family in the absence of any evidence that the appellants trespassed into any land in possession of the Respondent?s Family. (Ground 4).
The Learned Counsel to the Appellants referred to pages 9 and 10 of the record where the Respondent claimed (N400 Million) special and general damages. That the land in dispute is expressed to be the family property of members of Chukwueke family of Amuda Eluama, Uzuakoli. That the question is whether the family qua family was in exclusive possession of the land in dispute as to clothe it with a cause of action.
That the claim in damages postulates that Appellants entered into or interfered with land in exclusive possession of Chukwueke family. He relied on the case of AMAKOR VS. OBIEFUNA (1974) 3 SC 67 at 75. That by paragraph 9 of the Statement of Claim, Respondent stated he was not in exclusive possession of the portion entered into by Appellants. That Appellants were alleged to have broken and entered into Respondent?s UBIORO Land and covered the foundation of a
38
building, being erected on the said Ubioro land by a member of Respondent?s family called Onyemeze Okezie Chukwueke ? CW4. That no evidence was led in that behalf. That the family had said they allotted that portion trespassed upon to CW4 therefore no action can be taken by the family against trespasser on the portion of land allotted to CW4. That it means the Appellants did not trespass into any land in exclusive possession of Respondent?s family. Reference was made to the evidence of CW4. That evidence of CW4 showed the land over which Justice Okezie built as belonging to someone else, not the Respondent?s family.
?That the Respondent notwithstanding claimed in paragraph 18 of the Statements of Claim that Appellants entered into ?The Ubi ? Oro Land? and destroyed the building of Justice Okezie. That the Respondents averred Respondent?s family reap and harvest palm trees on the land in dispute meaning that Appellants never interfered with the palm trees or palm fruits. That the evidence of Respondent is at variance with pleading and ought to fail for adducing evidence at variance with Respondent?s
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pleaded case for damages. He relied on the case of SANI V. LERE Supra.
That the findings of the trial Judge at page 304 of the record stating that there is substantial evidence of trespass but that the claimants did not prove special damages, but only general damages is perverse. That the finding did not come from any evidence adduced at the trial. He relied on the case of ADIMORA VS. AJUFO (Supra).
That the Learned trial Judge misconstrued mere entry into a disputed land as trespass without considering whether Respondent was in an exclusive possession with right to sue for damages. He relied on Renner v. Annam & Ors. 2 WACA 258. That no title was awarded to Respondent?s family in SC 215/198 because they did not Counter-Claim.
He relied on the case of AMUDA VS OSHOBOJA (1984) 73C 68. That the Respondent conceded the Appellants were in peaceable possession of a part of the land in dispute growing crops thereon whereas according to Appellants, the portions of land allegedly trespassed into by Appellants was never in exclusive possession of Respondent. That Respondent has no superior title to the land in dispute.
In reply to the
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above submissions, the learned silk to the Respondent relied on paragraphs 8, 9, and 10 of the statement of claim which averred that the Respondent?s family were in exclusive possession of UBI ORO land in dispute. He also placed reliance on evidence of CW1 (Odoemene Okezie Chukwueke) and the cross examination. That the Appellants as Defendants did not deny the allegation of trespass as averred by Respondent in paragraph 10 of the statement of claim. He referred to paragraphs 8 and 9 of their Amended Statement of defence wherein they averred that they did not enter UBI ORO land but land known as UZO NPPEM UGA. That the Appellants averments were not proved. He relied on the finding of the learned trial Judge on page 304 of the record.
It is trite law that where the claims are for trespass and an injunction, the title to the land in dispute is automatically put in issue. All that the Claimant needs to do in such circumstances is to lead sufficient evidence in proof of his case. See ONYIOR ANEKWE & ANOR VS. MRS MARIA NWEKE (2014) 10 SCM 83 at 101 F-I per OGUNBIYI, JSC.
The law is also settled that trespass is actionable per se. Once it is adjudged
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that the land in dispute belongs to a claimant, the Court will make assessment of damages which flows directly from the trespass. It is at the discretion of the trial Court and will be decreed against the trespasser without any proof of special damages. All the pieces of evidence on record show that the Appellants entered the land in dispute without the consent of the Respondent.
As found earlier on the Appellants and the Respondent that they know the exact land in dispute and its areas and the place it is situated. The fact that the Appellants called the land ?UZO NKPEM UGA? and the Respondent calls it ?UBI ORO” Land, is immaterial. The land in dispute in this case is the land Respondent called UBI ORO and which Appellants referred to as UZO NKPEM UGA?. See AWOYOOLU VS. ARO (2006) 4 NWLR (PART 971) 481 at 498 1 – 10 499 A per OGBUAGU, JSC who said.
?It is now firmly established that where the identity of the land in dispute was/is known to the parties and not in dispute, no plan was/is necessary. The absence of a plan consequently, will not be fatal to the plaintiff?s claim if proper description of the land is available in the
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proceedings. See Atolagbe vs. Shorun Supra.
It needs be stressed and this is also settled that the mere fact that the parties give the land in dispute, different names, is immaterial.?
The Respondent proved the trespass to their land against the Appellants who truly as found by the trial Judge did not deny the trespass. I cannot fault the finding of the trial Court to the effect that the Respondent proved that Appellants trespassed into Respondent?s land. The Respondent was/is therefore entitled to damages as found by trial Judge.
See: (1) XTOUDOS SERVICES NIG. LTD VS TAISEI (W.A.) LTD & ANOR (2006) 10 ? 11 SCM 409 at 421 – & 422.
(2) BARDE EGWA VS MOSES CHIROMA EGIWA (2007) NWLR (PART 1014) 71 at 93 per RHODES ?VIVOUR J.C.A now JSC who said:
?In the instant case, since the Respondents were rightly adjudicated to have a better title than the appellants to the farm land in dispute the trial Court had no option but to sustain the claims for damages for trespass and injunction. The Appellant pleaded that he has been cultivating the land long before 1984, he being the customary of owner of the land. The
43
trial Judge found and quite rightly in my view that the appellant?s presence on the land amounted to trespass. The question of taking into account the testimony of the appellant?s witnesses in respect of possession of the land no longer arises, as the issue of trespass goes with the proof that the Respondent owned the land exclusively since the Court found that the Respondent owns the land, his claim for trespass must succeed; See P. AMAKOR VS OBIEFUNA (1974) 3 sc PAGE 67; N. CARPENTER & ANOR VS B. LARUNWUN (1970) 2 ALL NLR 383.
Issue 4 is resolved against the Appellants.
ISSUE NO. 5
Whether the finding of the Learned Trial Judge that the Appellants? witnesses testified in favour of the Respondent and thus negativing the Appellants? counter ? claim can be justified having regard to the evidence at the trial. (Ground 5)
The learned counsel to the Appellants made reference to the holding of the Learned trial Judge on page 304 of the record stating that the Defendant gave evidence in support of the Claimant?s Claim and admitted the features of OBIORO.
?The Learned Counsel to the Appellants stated
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that none of the Appellants witnesses gave evidence in support of the Respondents case. That written Statement on Oath of Appellants? witnesses can be found on pages 200-208 and 211 of the record where in paragraph 21 of Written Statement on Oath the D.W.2 gave the boundary neighbors and boundaries of the land in dispute. That D.W.1 on page 237 under cross-examination stated that the land in dispute in that case (SC 215/1984) is UBI ORO but that it is not the land in dispute. That the respondent frontloaded the judgment of the Supreme Court per BELLO, JSC in Appeal No. SC215/1984. That in Exhibit ?A?, the Respondent?s Survey Plan did not show water tank but a Water Reservoir. That there is nothing to show that ?Water Reservoir? is the same as tank built by M.O.W.M. 1965. That cashew plantation is not a peculiar feature of the land in dispute in appeal No. SC.215/1984. That all surrounding land have cashew plantation. That since the land depicted in Exhibit ?A? is not the same as the one described in the judgment in SC.215/1984, the Appellants contended that whatever features are said to be found in the land in
45
dispute in this case and in the land in SC.215/1984 will not come to much in determining the merit of the appeal here.
That M.O.W. tank admitted by DW1 as being part of the land in dispute in appeal No. SC. 215/1984 is not shown in Exhibit ?A?. According to Appellants, what the Respondent showed in Exhibit ?A? tendered by him is ?water reservoir? and that the DW2 did not answer any question under cross examination regarding ?Water Reservoir? or ?Water tank?. Appellant therefore contended that the decision of trial Court was perverse. They relied on the cases of:
EKWERE VS. IYIEGBU (1972) 1 ALL N.L.R. (PART 11) 179 and ADIMORA V. AJUFO Supra.
In response to the submissions under Issue 5, the Learned Silk to the Respondent submitted that the Appellant did not prove their counter claim. He adopts his arguments under Issues 1, 2, 3 and 4 respectively. That by their Exhibit ?C? and ?P?, the Appellants admitted Respondent?s evidence is an admission against interest relying on the case of WEMA BANK PLC VS D.I.T. LTD. (2011) 6 NWLR (Pt. 1244) P. 479 at 499 F-G per
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SAULAWA, JCA.
That the Respondent pleaded water tank at paragraph 7 of the defence to counter claim as one of the feature on the UBI OLRO land. That Exhibit ?D? tendered by the Respondent showed water tank on it and exhibits ?F? and ?E? tendered by the Appellants also showed water tank and that the word ?Water Tank? was used on each of them. That DW1 in his said admission of the feature UBI ORO LAND as averred by the Respondent said ?Water Tank? is one of the features on the UBI ORO LAND. He urged that issue 5 be resolved against the Appellants.
I am of the firm view that the Appellants are under serious misapprehension of the oral and documentary evidence before the trial Court. They no doubt have a serious misconception of evidence tendered and proffered by the Appellants witnesses including their prime witness DW1 who unequivocally admitted the pleaded case of the Respondent.
?I have closely perused Exhibits ?B? ?E? and ?F? tendered by the Appellants. In Exhibit ?E? M.O.W. ?Water Supply Tank? was and is still depicted on it.
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It is very conspicuous therein. The title of the plan reads:
?PLAN OF LAND IN SUIT NO. HU/53/66 ADIBE NWANKWO AND 2 ORS FOR THEMSELVES AND REPRESENTATING THE PEOPLE OF AMUDA ELUAMA, UZUAKOLI
VERSUS
OKORONKWO AND ANOR OF AMUDA ELUAMA UZUAKOLI BENDE DIVISION UMUAHIA PROVINCE.?
It is plan No. JJ/78/66 dated 10/12/66. In paragraph 28 of the Appellants Amended Statement of Defence and Counter Claim the Appellants pleaded thus:
?In Suit No. HU/53/66, the Plaintiff?s Survey Plan in that case shows that the land in dispute herein belongs to the 2nd Defendants father Kanu Anum. The said survey Plan with number JJ/78/66 is hereby pleaded.?
This is a clear evidence that the land litigated upon in HU/53/66 is the same land in dispute now. They lost the case in the Supreme Court vide SC.215/84. There is nothing in Exhibit ?C? showing that the land therein belonged to 2nd Defendant?s father in this case.
Now coming to Exhibit ?F? the Plan was drawn in 1989. It is Survey Plan No. A3A/IMD/263/89. The title of the plan reads:
?PLAN SHOWING LAND IN DISPUTE IN SUIT NO.
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HU/50/89 BETWEEN MR. OSISIOGU KANU ANUM .. PLAINTIFF
AND
HONOURABLE JUSTICE OBINNA OKEZIE?. DEFENDANT.
UZO NKPEMUGA ? AMUDA ELUAMA UAZUAKOLI BENDE LOCAL GOVESRNMENT AREA IMO STATE.?
One of the references there shows the land as belonging to MR. OSISIOGU KANU ANUM. In it also is conspicuously shown:
?Water Works Supply Tank?
?Exhibit ?D? tendered by the Respondent is the Respondent?s Survey Plan used in HU/53/66 that was fought up to Supreme Court. In it, there is depicted ?M.O.W. Water Tank? and all the features in it are the same as Exhibit ?A?. All the Survey Plans tendered by the parties evidently show that both parties are talking of the same parcel of land. Apart from the admission of DW1, DW2 also admitted that the land that went to Supreme Court is called UBI ORO. Even though the Appellants prevacated that the land now in dispute is ?UZO NKPKEM UGA? and all the witnesses said the land that went to Supreme Court was called UBI ORO LAND. The first time Appellants introduced UZO NKPEMUGA UGA was in the Case
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HU/50/89.
The fact that the Water Tank was referred to in Exhibit ?A? as Water Reservoir does not change or tilt anything in favour of the Appellants. Water Reservoir and water Tank can be used interchangeably. The Appellants were not confused. The assiduous efforts of their learned counsel to shore the lack of credible evidence on the part of the Appellants to sustain their counter claim cannot hold sway. The submission cannot redeem the Appellants case from the shackles of fatal or disastrous admissions made by them showing that the land now in dispute was the same land litigated upon in HU/53/66 which was laid to rest by the Supreme Court and in which the Appellants and their family lost the case. The learned trial Judge cannot be faulted in all his findings including the evidence of the Appellants which supports the case of the Respondent. Their evidence was not consistent with their pleadings. The Learned trial Judge cannot be expected to accord Appellants evidence any probative value.
See NEWMAN OLODO & ORS. VS. CHIEF BURTON M. JOSAIAH & ORS. (2010) 18 NWLR (PART 1225) 653 at 673 C ? D per FABIYI, JSC; who said:<br< p=””
</br<
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?The Court below rightly in my view appraised the above. It found that from the evidence of Gershom Newman and the D.W. 3, there emerged a major conflict. It felt that the effect of it was that it succeeded to destroy the case of the Appellants and knocked off the bottom of their claim to title and left the case of the respondent solid and monolithic;
I agree with same. This is because where as in this case for a claim for a declaration of title, the Appellants and their witnesses gave conflicting history of the appellant?s root of title, such root would be treated as unreliable; See: Mogaji v. Cadbury Nigeria Ltd. (1985) 2 NWLR (Pt.7) 393. The Court below was on a firm stance in the position taken by it. I cannot fault same.?
The learned trial Judge could not have granted the reliefs contained in the counter claim in favour of the Appellants on the undulalating and highly discredited evidence presented by them at the Lower Court. The decision of the Lower Court is not perverse. It is amply supported by the oral and documentary evidence before the Lower Court. Issue 5 is resolved against the Appellants.
?On the whole, the
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Appellants? appeal lacks merit and the Appellants appeal is hereby dismissed.
The judgment of the Abia State High Court which sat at Uzuakoli Judicial Division delivered in HUZ/7/2007 by HON. JUSTICE O.A.K. OGWE on 6th day of March, 2013 is hereby affirmed.
The Appellants shall pay costs assessed at N50,000.00 (Fifty Thousand Naira) to the Respondent.
Other Citations: (2016)LCN/8912(CA)
