Okolie Okolo & Ors v. Sammy Onwuegbuzia Nnwamu & Ors (1973)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C. 

The plaintiffs have appealed against the judgment of Arthur Prest, J. (High Court, Agbor, Mid-Western State) by which he had dismissed with costs their claims for a declaration of title to certain lands in the State; damages for trespass to the lands and an injunction. The plaintiffs are representatives of the people of Umuoje Quarters of Asaba and had taken out the action in such representative capacity “for themselves and on behalf of the people of Umuoje, Asaba”.

The defendants, who are the respondents before us, are representatives of the people of Umuda Quarters of Asaba and were sued and are defending this action in such representative capacity “for themselves and on behalf of the people of Umuda, Asaba”. The subject matter of the dispute is land which the plaintiffs call Ilo-Ugwule but which the defendants call Odogwu-Apiti and Abo land.

The pleadings of the parties aver that both the plaintiffs and the defendants have descended from a common progenitor Oneh, that both parties claim the land in dispute as being within the boundaries separating their lands from each other and that both parties claim to have exercised ownership and possession rights over the said lands and had given, fought and won some more cases in protection of their rights as owners and in vindication of those rights. The defendants then counter-claimed for :-

“(a) Declaration of title to the land known as “ODOGWU APITI” as shown in the defendants’plan No. MWC/36/66.

(b) Injunction restraining the plaintiffs, their servants or agents from entering or interfering whatsoever with the land.

(c) 300pounds damages for trespass on the said land.”

At the trial, the plaintiffs produced their own plan of the land in dispute, No. M/GA38/66 and this was admitted in evidence as Exhibit P1. In the same way, the defendants produced their plan of the land claimed by them and this was admitted in evidence as Exhibit D1. The 1st and the 4th plaintiffs called a total of five witnesses. The 3rd defendant also gave evidence for the defence and a total of eleven witnesses testified on behalf of the defence.
The plaintiffs’ surveyor, George Obianwu, was asked in court to superimpose the plans of the parties one on top of the other and the resulting composite was admitted in evidence as Exhibit D2, in which the “superimposed area on the defendants’ plan is edged black”. In the course of his judgment, the learned trial Judge meticulously reviewed the evidence of the parties and then directed himself thus:-

“The kernel of this whole case appears to me hinged on who owns the lands on the northern boundary of the land in dispute edged BLUE in the defendants’ plan. See superimposed plan Exhibit “D2”. If the plaintiffs are the owners of these lands then they are obviously the owners of the surrounding land as shown on their plan Exhibit “P1″. If not, then it is evident that the defendants northern boundary of the land in dispute is the true boundary and the plaintiffs’ southern boundary is a fictitious one.”

The learned trial Judge then found and held on the evidence accepted by him that, with the exception of some small portions, the lands on the northern boundary of the land in dispute belong to the tenants of the defendants in that they have always farmed those portions of the defendants’ land known as Odogwu-Apiti being the portions of the defendants’ land which at one time or the other the defendants had granted to the ancestors of the present occupiers who are kinsmen of the plaintiffs. The learned trial Judge concluded therefore that the northern boundary of the land claimed by the plaintiffs as their own and in respect of which they were seeking a declaration of title, was not proved. With regard to the southern boundary of the land claimed by the plaintiffs, the learned trial Judge observed:-

“I am not impressed also with their southern boundary which, as I have said, would appear to be an arbitrary boundary created for the purpose of this litigation which has been going on since 1959. That being so, the plaintiffs claim for declaration of title must fail.”

He eventually dismissed the claim for declaration of title as well as those for damages for trespass and a perpetual injunction.

After this, the learned trial Judge then directed his attention to the counter-claim of the defendants. His observation on this are partly as follows :-

“With regard to the claim of the defendant, as I have said the defendants have not laid claim to the land edged BLUE on their plan Exhibit “D1”, which the plaintiffs claimed as part of their land. On the other hand, the plaintiffs have in effect conceded that the southern part of the land claimed by the defendants does not belong to the plaintiffs. That being so, and having held that the plaintiffs are not the owners of the land claimed by them on the northern boundary of the land in dispute, I think the defendants are entitled to a declaration of title to the land shown on their plan Exhibit “D1″.