Michael Ogo Ibeziako V. Nwagbogu & Anor (1972)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

The proceedings herein originated in the Onitsha Native Court as Suit No. 649/55 in which the present respondents, as plaintiffs, had sued the present appellant as defendant for:-

“1. Declaration of title to the piece or parcel of land known as and called Iyiukwu situate in Onitsha Township and bounded on the North by Ogboza land occupied by Q.R.C., on the East by Ogboli land, on the West by Oguta Road and on the South by land of Otimili of Obikporo. Plan of land to be filed in court. Value of land 400pounds.

2. 150pounds damages for trespass to the said land.
3. Recovery of possession of the said land.
4. Injunction to restrain the defendant and or his agents or servants from entering on the said land and building thereon or interfering in any way with the plaintiffs’ possession and ownership dispute arose since 3 months.”

On the 7th November, 1955, and by virtue of powers conferred on him in that behalf by section 28(1) of the Native Courts Ordinance, the Senior District Officer, Onitsha Division, transferred the case for hearing to the then Supreme Court of Nigeria, Onitsha Judicial Division. In the Supreme Court the case was No. 0/79/55 and was there heard by Hughes J. (High Court, Onitsha) who delivered judgment therein on the 18th November, 1958 and dismissed with costs the case of the plaintiffs. In the course of his judgment, Hughes J., after reviewing the evidence concerning the plans which were produced in evidence, stated, inter alia, as follows:-

“Had it been the case that the boundaries of the land in dispute had been proved to a degree of certainty where a declaration of title would neither give to the plaintiffs a relatively appreciable extra amount of land to which they might not be entitled nor take from the adjoining landowners a similar area of land which might in fact belong to such landowners, I would have passed on to consider whether or not the plaintiffs have proved ownership. As it is, the evidence is such that I find myself unable to hold that the plaintiffs have proved with sufficient precision what are the boundaries of the land to which they lay claim and accordingly this case must be dismissed but I wish to make it clear that my finding should not be understood as in any way indicating that the defendant is entitled to a declaration of title.”

The learned trial Judge (Hughes J.) did not therefore decide the case on any of the other points raised and in respect of which there was a considerable body of evidence before him. Earlier on in the course of the same judgment, he had observed as follows:-

“Of the many differences which exist in the boundaries of the land in dispute as shown on the several plans not the least significant is that on exhibit A the southern boundary of the land in dispute extends some seventy yards further eastwards than the corresponding boundary shown on exhibit L, this is of importance when it is remembered that both these plans were prepared on the instructions

of the plaintiffs’ people.”

The plaintiffs appealed against that judgment to the Federal Supreme Court and their appeal succeeded and was allowed. In the course of the judgment of the Federal Supreme Court, delivered by Sir Lionel Brett F.J., he observed as follows:-

“In his judgment Hughes J. made only brief reference to the oral evidence and did not survey it as a whole. He rested his decision on the inconsistency between two plans showing the land in dispute, each of which was said to have been prepared on the instructions of the plaintiffs, and on the failure of the plaintiffs to explain the inconsistency. ”

The Federal Supreme Court then traced the history of the plan produced by the defendant to contradict the plaintiffs’ evidence of their boundaries and referred to the plan as having been produced in evidence before Hughes J. as exhibit L. The Federal Supreme Court then observed as follows:-

“Where I respectfully disagree with Hughes J. is in the importance which he attached to exhibit L. At most it tended to affect the weight of the evidence called in support of the boundaries shown in exhibit A and, as I have already said, he did not consider that evidence in detail. The value of exhibit L itself is lessened by the lateness of its production. Furthermore, while it is a commonplace that a plaintiff seeking a declaration of title must succeed on the strength of his own case, there are occasions when the weakness of the defence tends to strengthen the plaintiff’s case and this may be well such an occasion.” The Federal Supreme Court as stated above, allowed the appeal of the plaintiffs, set aside the judgment of Hughes J. and ordered that the case be re-heard, de novo, by another judge, the parties being at liberty to amend their pleadings. This was on the 3rd March, 1960.

Pursuant to the order of the Federal Supreme Court and leave obtained in accordance with Rules of Court the plaintiffs on the 4th September, 1961, filed an amended statement of claim and on the 15th January, 1962, the defendant also filed an amended statement of defence. The re-hearing took place before Kaine J. (High Court, Onitsha) and was started on the 27th February, 1963. Both parties gave evidence and called witnesses. The plaintiffs are the Umoujidoko family of Ogbodogwu Village in Onitsha: they will hereafter in this judgment be referred to as such. The defendant belongs to the Umuesina family of Amese Village in Onitsha. When the hearing of the case started, the people of Amese Village by their representatives sought and were granted leave to be joined as co-defendants in order to resist the claims of the plaintiffs. That was in the trial before Hughes J. They filed a statement of defence and a plan and their plan was produced in evidence at the trial before Kaine J. as exhibit G. We stated earlier on that both parties gave evidence at the trial and produced plans. For the plaintiffs the plan of the land in dispute No. MEC/109/59 was produced and admitted as exhibit A. It was given in evidence that the Umuojidoka family have always been in possession of the lands in that around 1955, when the plan exhibit A was being made, there were some scattered buildings belonging to the defendant’s people of Amese on the land but that these buildings were all then under construction. It was also given in evidence for the plaintiffs by their surveyor, Chukwura, that in 1958 and for the purpose of another case which the plaintiffs then had against the Obosi people, he had prepared another plan of all the plaintiffs’ land, that this plan was No. MEC/56/60 and the plan was produced in evidence in these proceedings as exhibit B. The surveyor also produced, and this was admitted in evidence as exhibit C, yet another plan (MEC/66/55) of the land which he had made for the plaintiffs in 1955: indeed, the surveyor, Chukwura, also made other plans of the land in dispute either for the defendant or with his approval or for his people of Amese. These plans were produced and admitted in evidence as exhibit D (No. MEC/200/56), exhibit E (No. MEC/38/62), exhibit F (No. MEC/178/61), exhibit G (No. MEC/7/58) and exhibit K (No. MEC/279/57). We pointed out before that a plan specifically made for the plaintiffs and covering their lands but in respect of another case was produced and admitted in evidence before Hughes J. as exhibit L. That plan could not be found at the trial before Kaine J. and so a copy of it was by consent of the parties produced in evidence in this case and admitted as exhibit H. At the instance of the defendant, the surveyor, Chukwura, made and produced in evidence a composite plan featuring the contents of all the various plans. The composite plan was admitted in evidence as exhibit J. Concerning exhibit J and its relation to the other plans of the plaintiffs, the surveyor, Chukwura, testifying for the plaintiffs, stated:-

“I made exhibit J on the instruction of the defendant. Exhibits C and H do not correspond on the eastern side. Also exhibits C and G do not agree on the eastern boundary of exhibit C. Exhibits C and H differ slightly on the northern boundary. In 1956 the houses on the land in dispute were completed. I mean the storeyed building and the out houses. In 1959 when I made the plan exhibit A, the plaintiffs did not show me any farms on the land in dispute either belonging to you or to them.”