Matthew Echere & Ors V Christopher Ezirike & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

KATSINA-ALU, JSC

This is an appeal by the Plaintiffs against the judgment of the Court of Appeal, Port-Harcourt Division delivered on 30 April 2001. The Plaintiffs, in their action instituted against the 1st Set of Defendants claimed as follows: “1. Declaration of title to pieces of or parcels of land situate at Umuokwara-udu Umuobom in Orlu Division repectively known as and called (1) ALA NWAIK-PA; (2) ALA OGWUGWU AWALA; (3) ALA OKEAHIA (4) ALA GBOKOGBOKO AND (5) ALA UGWUN-NOGO within the Orlu Judicial Division and more particularly delineated on a Plan to be tendered at the hearing of this action, of an annual value of =N= 10.00 (ten Naira). 2. =N=200.00 (two hundred Naira) general damages for trespass into the said lands. 3. Perpetual Injunction restraining the Defendants, their servants and/or agents from entering into the said lands and acting therein in any manner inconsistent with the Plaintiffs’ ownership and possession.” The Plaintiffs did not sue the 2nd Set of Defendants. It was the case of the 2nd Set of Defendants that the Plaintiffs and the 1st Set of Defendants incorporated in their respective plans portions of land belonging to the 2nd Set of Defendants. Consequently the 2nd Set of Defendants applied to be joined and were joined as co-defendants to protect their interest in the land in dispute. After hearing evidence and the addresses of counsel, the learned trial judge in a reserved judgment found for the Plaintiffs. He held thus: “As there was no dispute as to how PW2 AND PW3 came to live on portions of the land in dispute, I consider it an academic exercise to dabble into the essentials of customary law of sale. Where PW2 and PW3 live are clearly shown in Exhibit A. It is also irrelevant to consider the issue of pledge. There is no dispute between the plaintiffs on one side and PW2 and PW3 on the other side. This case is based mainly on the facts adduced by each (sic) parties in this case. I am inclined to believe the plaintiffs and their witnesses. There is also no dispute between the plaintiffs and the 2nd set of defendants. They know the boundaries of their respective lands. I find for the plaintiffs ………..” The 1st set of defendants appealed to the Court of Appeal. Their appeal was allowed and the judgment of the trial court set aside, and the claim of the plaintiffs was dismissed. The plaintiffs have now appealed to this court against the judgment of the Court of Appeal upon a number of grounds. The plaintiffs submitted five issues for determination in this appeal. They read as follows: 1. Whether the Court of Appeal was right in applying the test of “doubt” instead of preponderance of evidence in reversing the judgment of the trial Court that the Plaintiffs/Appellants proved that they were the owners of the land in dispute? 2. Whether the Plaintiffs/Appellants proved their case and should be entitled to judgment as held by the trial Court? 3. Whether the Court of Appeal was right in interfering with the findings of fact of the learned trial Judge that the land in dispute belongs to the Plaintiffs/ Appellants. 4. Whether the Court below was right in holding that establishing acts of trespass to two plots of land out of five plots constituting the land in dispute was not enough to establish act of trespass against the 1st set of Defendants/Respondents in respect of the land in dispute? 5. Whether the judgment of the Court of Appeal is sustainable in this case? The 1st set of Defendants did not file a Respondents’ Brief of Argument even though they were duly served with the Appellants’ Brief of Argument At the hearing of this Appeal on 6 March 2006, the 1st Set of Defendants were not in court and were not represented by their counsel even though they were served with the Notice of hearing for that day. In this appeal, I shall deal with issues 1, 2, 3 and 5 together. In the course of its judgment, the Court of Appeal, per Pats-Acholonu JCA (as he then was) stated as follows: “With the doubt as to whether the lands have been alienated having regards to the evidence of P.W.2 and P.W.3 it cannot in all seriousness be said that Plaintiffs/Respondents were in serious or exclusive possession to maintain an action for trespass.” The appellants have submitted that the statement of the Court of Appeal amounted to a misdirection which occasioned grave miscarriage of justice. I agree. I will explain. The Appellants were relatives of the 1st set of defendants. I may add here that the 2nd set of defendants have a common ancestor with the 1st set of Defendants. PW 2 was Nnabugo Azubike. He gave evidence and said inter alia: “I know the plaintiffs who come from Umuori Umuokworaodu Umuobom. I know the defendants in this case. I am from Durunwaneri family. The defendants are all from Durunwaneri family …………… I know the following land called Okohia – where I live, Ala Nwikpa, Gbakogboko, Ala Ugwunnogo, Ala Ogwugwu Awala. They are owned and they belong to the plaintiffs. These pieces of land on which I live does not belong to me. It was shown to me to live by one Agbarakwe of the Plaintiffs” (3rd plaintiff; deceased) (underlining mine). The next witness was Matthias Anyaeche. His evidence in part thus: “I am the Spiritual leader of my church. I know the plaintiffs from Umueri, Umuobom. I know the two sets of defendants. They are my relations. I am from Durunwaneri family as well as 2nd defendant of the 1st set of defendants, 1st defendant in the second set of defendants called John Anyaeche whose father was my senior brother, and the 3rd defendant in the second set of defendants. We all are from Durunwaneri family. I am here on subpoena. I know where I am living now. It is not where I have been living since I was born. Formerly I was living in my father’s compound, Anyaeche at Ugwuabo. Where I was living formerly before was near where the 3rd and 5th defendants were living. Where I am living now is not the land of Anyaeche, it was granted to me by one Agbarakwe Egwim from Umueri of the plaintiffs. He had been in possession of the land before I was born. When Agbarakwe showed me the said land his relations including the plaintiffs knew about it. Agbarakwe Egwim invited his relations when I approached him to give me a piece of land in Okohia where to build. His relations agreed. The land on which I am living is within the Ala Okohia of the Plaintiffs and it is one of the pieces of land in the present dispute. PW 4 was Joseph Ehirim. In his evidence he said: “The plaintiffs are from Umueri while the defendants are from Ugwuabo as myself. I am from Umudurunwaneri Ugwuabo. The 2nd, 3rd and 5th defendants are from Umudurunwaneri Ugwuabo like myself. I know the land in dispute. They are called Nwaikpa land, Ogwugwuawala land. Gbokogboko land, Okohia land and Ugwunnogo land. These five pieces of land in dispute belong to the Plaintiffs and their people and they are the owners. I live in Ugwuabo. I have land at Okohia which shares common boundary with the land of the plaintiffs at Okohia. I am also a palm wine tapper and used to tap raffia palms at Ugwunnogo before the present land dispute. I tap raffia palm trees there for the plaintiffs and all palm wine collected by me from the said raffia palm trees were taken to Agbarakwe Egwim – the deceased third plaintiff on record. I tapped the raffia palm trees in Ugwunnogo for about 30 years for the plaintiffs without any disturbance or interruption from any one except when this dispute started ……………..”. This witness further told the court that: “Earlier the 2nd defendant who is my tax collector summoned the Ugwuabo people at the house of Ikokwu and told us that they would dispute the land of Umueri which is near to them. We told the 2nd defendant that we would not dispute the land of the plaintiffs of Umueri because our fathers did not do so. We did not give authority or consent to the first set of defendants to defend this action on our behalf. 2nd defendant said Umueri people are small in number and that we should kill the plaintiffs and take their land.” The learned trial Judge in his judgment held as follows: “From the evidence before me, I am of the view that the 1st set of defendants, because their own portions of land in the area are called the same names as the land of the plaintiffs in that area, all having come from the common ancestor, the 1st set of defendants tried to encroach on the land of the plaintiffs, with a view to claim the said land because the land in dispute is nearer to them and because Ugwuabo people are more in number than the people of the plaintiffs, according to the evidence which I believe, given by PW 2, PW 3 and PW 4, who are undeniably members of the defendants’ family. Granting portions of the land in dispute to people from the defendant’s family of Ugwuabo to live is in my view sufficient acts of possession. There is again uncontradicted evidence of PW4, another man from Ugwuabe, that he was tapping raffia palm trees for the plaintiffs on Ugwunnogo land – one of the pieces of land in dispute. No one interfered with him. This again confirms the plaintiffs’ act of ownership and possession of the land in dispute.” The learned trial Judge cannot be faulted. The findings of the learned trial Judge are clearly supported by the evidence before him. It seems to me quite plain that the evidence of PW2, PW3 and PW4 who are from the 1st set of Defendants’ family esta-blished that the pieces of land in dispute belong to the Plaintiffs/Appellants. The principles upon which an appellate court will interfere with the findings of a trial court have been laid down in numerous cases. An Appellate court will not and must not reverse a finding of fact made by a trial court unless such finding is not supported by the evidence and is perverse. See Benedict Agwu-nedu & Or. V. Christoper Onwumere (1994) 1 NWLR (Pt.321) 375; Chief Ntiaro & Or. V. Ibok Etok Akpan 3NLR 10 at 11; Woluchem V. Gudi (1981)5 SC 291 at 292. It must be borne in mind that the learned trial Judge heard all the witnesses and was in the best position to weigh the conflicting evidence put before him. An Appellate court will not interfere with the judgment of the learned trial Judge unless such judgment is shown to be perverse. There is absolutely nothing to show that the findings of the learned trial Judge in the instant case are perverse to warrant the setting aside of the judgment by the Court of Appeal. PAGE| 5 I am therefore in complete agreement with that the findings of the learned trial Judge was based on the evidence adduced before him and therefore the Court of Appeal was in grave error to reverse them. I come now, to the issue of trespass. The Court of Appeal, in this regard, said: “It is evident therefore that if there was any act of trespass it was only in respect of the 2 plots of land of the 5 plots which form the subject-matter of the action …………….. The argument of the Plaintiffs/respon-dents that trespass into one or 2 parcels of land is a trespass to all the lands is unacceptable.” Trespass is interference with possession. It is settled law that trespass to land is actionable at the suit of the person in possession of the land. See Akunyili V. Ejidike (1996) 5 NWLR (Pt.449) 381. In the instant case the two courts below have held that the plaintiff has, based on the evidence presented, proved sufficient acts of possession. He was held to have established possessory title to the land in question. There is evidence that the 1st set of Defendants trespassed into two pieces of the land in dispute. The law is that every invasion of private property, be it ever so minute, is a trespass. The evidence that the Respondents went on two pieces of the land in dispute clearly makes them liable to an action in trespass. See Adegbite V. Ogunfaolu (1990) 4 NWLR (Pt. l46) 578: Emordi V. Kwentoh (1996)2 NWLR (Ft. 433) 656. In the result, this appeal is allowed and the decision of the Court of Appeal is set aside. There shall be costs of =N=7,000.00 in the court below and =N= 10,000.00 in this court respectively in favour of the Appellants against the 1st set of Defendants/Respondents.

SC. 350/2001