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
(ii) with respect to the area A, Ofia Ikono, in the entirety.
There was of Course evidence by the plaintiff’s own surveyor that he did not survey the eastern and the western boundaries of the lands being claimed by the plaintiff because the plaintiff could not take the risk of a clash with his neighbours who on the east are the people of Illah and on the west the people of Onicha Olona. The area of Ogodor Farm land, area B, in respect of part of which the learned trial judge had granted a declaration of title, lies to the west of the land in dispute and the learned trial judge had expressly reserved the rights of the Onicha-Olona people whenever a precise survey is contemplated and put in hand. In the same way the learned trial judge had awarded a sum of 20 pounds as damages for trespass to the plaintiff’s people’s land only in respect of the southern triangular half of the area edge yellow to the north of Ogodor Farm land (Area B) which the defendants admitted they had gone on although it belonged to the plaintiff’s people. In dismissing the claim for injunction, the learned trial judge observed:
“Finally and in respect of the claim for an injunction, defendants’ counsel has submitted that this claim is tied to the present claim for declaration of title by which it stands or falls. In addition the court is loath to grant an injunction to an area which is not well defined-vide Jemiegbe /fie v. Okeke Gadi and others (1965) N.M.L.R. 457. Also vide Oluwi v. Eniola (1967) N.M.L.R. 339. This claim must therefore fail.”
The argument on the appeal can be easily summarised on three main plinths as follows:-
(i) That the learned trial judge should not have awarded costs to the defendants since it was the plaintiff that had won the declaration even if in respect of part only of the entire area which he had claimed;
(ii) That the plaintiff should have got his damages assessed on the basis of the whole of Ogodor Farm land, (Area B), once the claim for declaration had succeeded in respect of approximately the whole area and that the learned trial judge wrongly assessed the damages on the basis of the little triangular half of the northern area in exhibit Pion which the judge had found the defendant in trespass; and
(iii) That the learned trial judge should have non-suited the plaintiff in respect of the claim for declaration of title to the whole of the lands claimed and in respect to the other claims which are ancillary to and dependent on the claim for a declaration of title.
Concerning the first limb of the argument, we observe that the learned trial judge had awarded costs of 20 guineas to the plaintiff in respect of the portion of Ogodor Farm land (Area B) in respect of which he had granted them a declaration of title and had ordered costs of 115.15pounds against the plaintiff in respect of the other portions of the total areas on which the plaintiff had lost. No argument of any substance was addressed to us on this ground and we were not shown that the learned trial judge had either employed a wrong principle in assessing the costs or had fixed the amount at a figure which is manifestly too high in the circumstances. We do not consider that the awards of costs are unreasonable and therefore reject the complaint on this head.
Learned counsel for the appellant had also argued that the plaintiff should have got damages for trespass assessed on the basis that the trespass covered the whole of Ogodor Farm land area B, or at any rate such part of it (and this is considerable) as to which he succeeded in getting a declaration of title. Learned counsel for the plaintiff did not however suggest to us any figure at which such enhanced amount of damages should be fixed and we are singularly without the materials with which to make any assessment of the type contemplated even if we had been willing or desirous to do so. The argument of learned counsel however clearly overlooked the actual facts of this case. The plaintiff had succeeded in his claims for damages for trespass only in respect of the small piece of the northern yellow area of Ogodor Farm land in exhibit P1. In coming to the conclusion to which he had come on the claim for damages, the learned trial judge had observed as follows:-
“In addition to his claim for title the plaintiff also claims 5,000ponds damages for trespass of which sum 1,400ponds represents special damages. With regard to the claim for special damages in view of the area of the alleged destruction, i.e. within Ofia Ikono area disputed by defendants, the claim must fail, on the ground that there is no clear proof of possession by the plaintiff to sustain it. This over and above the fact that I am not satisfied with the evidence as to the alleged damage and/or ownership of the lroko and kolanut trees. The only other point I need consider on the claim for trespass is 3rd defendant’s admission that the people of Ogbuafor-Ezi still farm and set traps on the whole of Ofia-Azuno (otherwise Ofia). He also admitted that the area involved in exhibits P2 and P3 are within Ofia Azuno. These areas have been held to belong to the plaintiffs of Ukala-Okpunor. Any interference therefore with their right to possession of these areas is a trespass for which they are entitled to maintain an action for damages. However, the amount claimed as general damages by plaintiff is astronomical and entirely out of proportion to the damage done. I assess damages for trespass payable by defendants to plaintiff at 20 pounds(bearing in mind that exhibit P2 is a 1924 case.)”
Thus, the learned trial judge had found that with respect to the other portion of Ogodor Farm land, area B, there was no evidence of trespass and this fact is not disputed by the plaintiff. Indeed, the learned trial judge took the view that the evidence on the part of the plaintiff concerning the exercise of rights of ownership was unreliable. We think that the learned trial judge was right in coming to the conclusion that the damages suffered by the plaintiff must be confined to a very small area within the Ogodor Farm land, area B, and we are unable to disagree with his assessment of such localised damages at the figure of 20pounds which he had fixed. This part of the argument on appeal also fails.
With respect to the third and last limb, it is sufficient to say that the issues for consideration are of extreme importance. From the pleadings of the parties it is manifest that the most pressing consideration was the location of the Harper boundary. There is no dispute that the plaintiff’s land lies to the south of the defendants’ land. Indeed, there was no dispute that the southern boundary of the defendants’ land which would also be the northern boundary of the plaintiff’s land must lie along the course of the Harper boundary. In respect of this, the learned trial judge, after a careful consideration of the evidence, observed in the course of his judgment thus:-
“On the evidence before me therefore I have no hesitation whatsoever in finding that the northern boundary has NOT been proved. I am satisfied that most of its features, in so far as they exist at all, are entirely the unilateral handwork of the plaintiff. Similarly, the plaintiff has in my view failed to prove the western and eastern boundaries of the land claimed.”
We have already pointed out that both the eastern and the western boundaries were not surveyed let alone proved at the trial. If these were the only matters for consideration at that stage of the proceedings when the plaintiff closed his case, the learned trial judge would have been completely justified to dismiss the plaintiff’s case for the onus was on him in the action for a declaration of title to prove this case both with respect to the areas so claimed and with respect to the contents of the claims being made before the court.
But the learned trial judge then proceeded to observe as follows:-
“The fifth submission of defendants’ counsel is that the plaintiff on the totality of the evidence has failed to prove title to the land in dispute and/or claimed. In respect of the traditional evidence led, he has invited me to reject the plaintiff’s and accept the defendants’. This I am unable to do. The traditional evidence led by both sides is so unsatisfactory and raises such doubts in my mind that I cannot decide this case on it.”
This finding postulates that the defendants on the totality of the evidence were not entitled to the judgment of the court. The learned trial judge still went on to consider the merits of the plaintiff’s case in detail as covering the individual pieces or individual portions of Ofia Ikono land, area A, and Ogodor Fann land, area B. We have already pointed out that in respect of Ogodor Fann land, the learned trial judge had granted a declaration of title to a substantial part of it. Concerning this,it is apt to observe that the learned trial judge was mistaken as to the correct legal situation. Concerning the portion of Ogodor Farm land to which the learned trial judge granted a declaration of title, the western boundary is all but definite: this he had found himself. The northern boundary is not proved and only roughly emerges from the plans after the exercise of super-imposition perfonned in court by the plaintiff’s surveyor. Finally, the reservation in respect of the people of OnichaOlona completely removes any vestige of certainty from the western boundary. The defendants have not complained before us that the declaration granted in respect of that portion of Ogodor Farmland was wrongly granted; in fact, they conceded this portion both by their evidence and their plan. The learned trial judge considered in short that the plaintiff had proved his entitlement to such area of Ogodor Fann land but the standard of proof required was not attained and in any case the defendants were not entitled to the judgment of the court, i.e. to an order of dismissal of the plaintiff’s case.
With respect to the portion of Ofia Ikono, area A, in respect of which the defendants contested the case with the plaintiff, the learned trial judge found that the defendants had at one time or the other fought and won cases over some unascertained portions over a wide expense of land. Learned counsel for the defendants before us contended that the principle of estoppel per rem judicatem applied in respect of the areas of such judgments, i.e. exhibits D2 and D4. That submission was rightly upheld by the learned trial judge but with it must be reckoned the very large portion of Olia Ikono land, area A, to which the defendants laid no claim and in respect of which their claim to have granted the land to the plaintiff’s people was not accepted by the learned trial judge. So it follows that with respect to the area A, Ofia Ikono, the defendants are not entitled to the judgement of the court on a total appraisal of the plaintiff’s case and with respect to an imprecisely demarcated area to the south, the learned trial judge was in no doubt about the plaintiff’s entitlement.
Thus, in short, the position with respect to Ofia Ikono, area A, and Ogodor Farm land, area B, and the argument before us of learned counsel for the plaintiff, is that in such circumstances the learned trial judge should not have dismissed the plaintiff’s case as if the plaintiff had failed in toto to prove his case. In Ukia Edam and ors. v. Aja Orie and ors. F.S.C. 54/62 decided on the 21st March, 1963, the Federal Supreme Court reviewed the previous authorities on this issue and observed, inter alia, as follows:-
“It is easy to see why an order of dismissal should be made against a plaintiff who has failed in toto to prove his case in an action for declaration of title, but less so to see why such an order should be made against a plaintiff who, as against a defendant not in any way entitled to the judgment of the court, has manifestly established his case with respect to portions of the land in dispute. I have already alluded to the several court judgments which have been produced in evidence by both parties. The learned trial judge meticulously examined these judgments and concluded that it was difficult to hold that the cases truly constituted estoppel against either of the parties. In this respect I am in entire agreement with the learned trial judge for there were no means of identifying the specific portions of the vast area of the land in dispute covered by specific judgments, and in the majority of cases no plans were even produced at the trials”.
True enough, the learned trial judge could have dismissed the plaintiff’s case in the entirety after finding that the eastern and western boundaries were not proved to his satisfaction or at all. But he did not. He went on to make findings which demonstrates that the plaintiff had proved his entitlement to certain areas (not clearly defined) within area A and area B. He took the view that the evidence of ownership by the defendants is unreliable and that he could not decide their case on the evidence of their tradition as given before him. Indeed, the learned trial judge himself observed as follows:-
“I am satisfied that there have been and probably still are isolated acts of user by the plaintiff’s people of an area which has been the subject-matter of a dispute between the parties extending over decades. ”
An order of dismissal operates as estoppel per rem judicatam and, ipso facto, bars the losing party for at times from re-litigating the same subject-matter. A finding that such a party is entitled to some though not ascertained portions of the land in dispute is not consistent with an order of dismissal. If a plaintiff fails in toto to prove his case, an order of dismissal should normally follow but where the failure was only due to 1 technical hitch, the evidence of the merits showing the entitlement of the plaintiff to the land claimed or portions of it and the defendants not being entitled to the judgment of the court, the interest of justice demands that such a plaintiff should not be forever shut out from representing his case. See the observations of the West African Court of Appeal in Uzonwame Nwakuche and others v. Azubuike and others (1955) 15 W.A.C.A. 46. In similar circumstances this Court had directed an order of non-suit. See Craig v. Craig (1967) N.M.L.R. 52 also Dada v. Ogunremi (1967) N.M.L.R. 182. 11
Before us, learned counsel for the plaintiff has argued that the learned trial judge should have non-suited the plaintiff on account of the findings to which we have already referred. We think that the argument is well founded. Such an order would have obviated the necessity for the imperfect declaration covering an imprecise portion of Ogodor Farm land and the irregular dismissal of the claim for declaration in respect of an imprecise portion of Ofia Ikono to which the defendants had made no claim.
The result is that the appeal succeeds on this ground and it is allowed.
We make the following orders:-
(i) The appeal is allowed and the judgment of the High Court, Agbor (Mid-Western State) in Suit No. A/12/66, including all orders for costs, is set aside.
(ii) The plaintiff’s case is non-suited in respect of all the claims and this shall be the judgment of the Court.
(iii) The plaintiff shall pay the costs of the defendants in the Court below fixed at 115 guineas. The defendants shall pay to the plaintiff the costs of this appeal fixed at 70 guineas.
Other Citation: (1972) LCN/1258(SC)
