Okwo Ejiofor Vs Eze Onyekwe (1972)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C.

The present appellant as the plaintiff had instituted an action against the respondents as defendants in the High Court, Agbor, Mid-Western State, claiming against them as follows:-

“a declaration that the parcel of land shown and edged in PINK in the plan to be filed by the plaintiff with his statement of claim in this suit (which parcel of land lies and is situate in Asaba Division of the Benin Province) is the property of the people of UKALA OKPUNO in the Asaba Division of the Benin Province and that as owners in possession they are entitled to the use and occupation of the said parcel of land as against the defendants and the people of OGBUAFO Quarter in EZI in the Asaba Division of Benin Province.

The plaintiff claims further against the defendants and the people of OGBUAFO Quarter in EZI, jointly and severally, the sum of 5,000 pounds being damages for use and occupation of the said land of the people of Ukala Okpuno between 1956 and January, 1966 and until judgment in this suit.

The plaintiff and the people of Ukala Okpuno claim further against the defendants and the people of Ogbuafo Quarter EZI, an injunction to restrain them, their servants or agents from using or occupying or continuing to use or occupy or otherwise enter upon the said land.”

By his statement of claim, the plaintiff avers that the land in dispute is called Ikono land and comprises of two portions; area A being called Ofia Ikono and area B called Ogodor Farm land. His statement of claim further avers that in 1910 the boundary between the plaintiff’s people and the defendants’ people was fixed by a District Officer by name Harper in the course of his review of native court case No. 80/10 between the parties and that in defence of this boundary the plaintiff’s people had fought and won many native court cases against the defendants’ people. The statement of defence claims the land in dispute as the property of the defendants’ people from time immemorial and avers that in virtue of their ownership rights the defendants had always been in possession both by themselves and those whom they had put in possession thereof. The statement of defence further avers that even the areas on which the plaintiff’s people of Ukala Okpunor now live were granted to them by the defendants’ people and that the area of land referred to as Ofia Ikono or Ofia Ogodo was conceded by the defendants to the plaintiff’s people on the intervention of the District Officer, Mr. Harper. The statement of defence also avers a number of native court cases on which the defendants would found and in particular Suit No. W/89/57 in the High Court, Warri (later transferred to the High Court, Asaba) which the plaintiff’s people commenced against the defendants’ people but later on, after giving evidence, abandoned.

The parties gave evidence at the trial in support of their averments and called witnesses and produced documentary exhibits. Of particular importance is the plaintiff’s plan exhibit P1 in which was demarcated and edged in pink the two areas of Ofia Ikono (area A) and Ogodor Farm land (area B). This plan was produced in evidence by the plaintiff’s surveyor by name Isikwe Umemezie Ofoegbuna. In the course of his evidence the defendants’ plan was put to him and he produced it in evidence as exhibit D1. He then superimposed the two plans, exhibits D1 and P1, on each other and marked out on the plan exhibit P1 the land claimed by the defendants as theirs by virtue of exhibit DI. He also marked out on exhibit D1 the lands claimed by the plaintiff to be his own by virtue of exhibit P1. It is obvious from the resulting composite that the lands of the defendants’ people of Ezi lie to the north of the lands claimed by the plaintiff’s people of Ukala-Okpunor. It also appears from the composite that almost the whole of area B, known as Ogodor Farm land, was not being disputed by the defendants’ people in this case. Indeed, the only portion of Ogodor Farm land which falls within the claims of the defendants in exhibit D1 is a comparatively small area more or less triangular in shape and forming the northern cap of the area of Ogodor Farm land. The composite also reveals that a substantial portion of Ofia Ikono (area A) and lying to the south thereof was not being disputed by the defendants’ people; indeed, this area is shown perhaps with a lesser degree of precision on the defendants’ plan exhibit D1 as areas occupied by the plaintiff, apparently in virtue of the permission given by the defendants on the intervention of the District Officer, Mr. Harper.

Apart from the incidence of the plans, the parties tendered several native court judgments in which each party had won cases covering more or less unascertainable portions of the areas both in dispute and not in dispute. In a reserved judgment, the learned trial judge, Uche Omo J., extensively reviewed the evidence and the exhibits and at the end of the day he gave judgment against the plaintiff as follows:-

“To summarise therefore, it is the decision of this court that the plaintiff’s claim:-

(a) for a declaration of title to the whole area verged PINK on exhibit P1 is dismissed; excepting the portion of Area B (Ogodor farm land) from the southern boundary of the area verged yellow downwards, i.e. to the Onicha-Olona/Ukala-Okpunor Road, in respect of which a declaration is granted without prejudice to the rights of the Onicha-Olona people;

(b) for 5,000pounds damages being damages for trespass, succeeds only to the tune of 20 pounds for admitted trespass by the defendants to part of the area verged yellow on exhibit P1;

(c) for an injunction, is hereby dismissed.”

The plaintiff, apparently aggrieved by the decision, has appealed to this Court against it filing a total of 12 grounds of appeal. The learned trial judge had dismissed the claim for a declaration of title:-

(i) with respect to area B, Ogodor Farm laud, in part, since a large portion of that area was not disputed by the defendants; and