J.B. Ogbechie & Ors. V. Gabriel Onochie & Ors. (1988)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, J.S.C.

The proceedings leading to this appeal were first initiated in the High Court of Justice of Bendel State, Ogwashi-Uku Judicial Division at Ogwashi-Uku on the 23rd day of August, 1976. In that court, the appellants’ claim against the defendants stated in the writ of summons read:

“(1) Declaration of title to that piece and parcel of land known and called “Umuolu family land” situate and lying at “Umuolu Village, Ezi town within Ogwashi-Uku Judicial Division which said piece or parcel of land as to its area, position and boundaries will be shown on the survey plan to be filed by the plaintiffs in court. The annual rental value of the said land does not exceed N10.00;

(2) N2,000.00 (two thousand Naira) damages for trespass; the defendants being fully aware that the plaintiffs have been in undisturbed possession of the said land, he, his servants and/or agents have been committing acts of trespass on the said land;

(3) Injunction restraining the defendants by themselves their servants and/or agents from entering the said land or doing anything inconsistent with the plaintiffs’ right of possession thereon.”

Pleadings were on the order of the court filed and served and at the close of pleadings, the case was listed for hearing and determination of issues joined before Unurhoro, J. Of particular relevance to the claim of the plaintiffs were the facts pleaded in paragraphs 11 and 12 of the amended statement of claim. These paragraphs read:

“11. Ezi Uzo inherited the entire land of Ezi from his father Oraeze otherwise known as Ushi, the man who deforested the area. Ezi Uzo before his death apportioned his patrimony between his two sons, Jebeoma and Olloh, and the area now in dispute is part of Olloh’s share.

12. Olloh as his father before him, exercised maximum acts of ownership over his patrimony by farming, hunting and living thereon.

Three witnesses, 4th plaintiff, 2nd and the 1st plaintiffs’ witnesses testified at the instance of the plaintiffs. Six witnesses testified at the instance of the defence. After the addresses of counsel to the parties, the learned trial judge on the 18th day of April, 1983, delivered a reserved, well-considered judgment dismissing the plaintiffs’ claim in its entirety. The learned trial judge considered the evidence led meticulously and concluded lamentably in the following words.

“I have carefully and seriously considered the evidence tendered by both parties in this case with respect to their claim to acts of ownership or possession of the disputed land. I must say that I am greatly disappointed as this case was seriously starved of evidence by both parties in this regard.

It is settled law that pleadings are no evidence upon which a court of law could act, unless such fact is admitted by his adversary, but even where such is admitted in the pleadings, in claims of declaration, the plaintiff is still enjoined to prove his case as he succeeds on the strength of his own case and not on the weakness of the defendants….After a close study of the facts pleaded by both parties, Exhibits P1 and D1 together with the facts tendered before me, I am inclined to hold that the disputed land is predominantly farmland but it would appear that development may soon catch up with the said area to attract residential or industrial quarters

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But lamentably, the plaintiffs led no evidence in support of all these things nor did they endeavour to lead evidence in support of the facts pleaded in paragraphs 12, 20, 21, 22, 23, 24 and 26 of the amended statement of claim reproduced above. I do not accept the proposition that the burial of the body of an unknown dead man found on the land confers title on those who buried the Corpse. This was not supported by any person from any of the other four villages in Ezi town. P.W.3 in his testimony stated that the incident of the unknown dead man occurred before 1918 but this was faulted by the facts pleaded by the plaintiffs in paragraphs 22 of the amended statement of claim, that it all happened in 1945. I do not believe them in this regard. In Exhibit P1 the plaintiffs did not show the site of the old settlement where Olo allegedly lived.

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Again the surveyor who went to the land and did the survey and prepared Exhibit P1 was never called to testify to these things in order to prove same and lend weight to the averments contained in paragraph 21…….