Silias Okoye & Ors V. Chief Agbogbua Kpajie & Ors (1972)
LawGlobal-Hub Lead Judgment Report
G. S. SOWEMIMO, J.S.C.
This is an appeal against the judgment of Kaine, J., in which he awarded 5 pounds damages for trespass and injunction against the appellants.
The plaintiffs averred in their statement of claim as follows; that they have been living and farming on the land as owners of the land in dispute; that they have several dwelling houses on the land as well as some juju shrines; that in the exercise of their right of ownership they had let out certain portions of the land in dispute to tenants; that there had been several court cases between the parties between 1921 and 1961 and these confirmed their (Plaintiffs) ownership of the land; that the defendants trespassed on the land in 1955 and damaged some of the plaintiffs’ property on the land as a result of which suit No. 0/12/57 was brought against the Umusiome people (defendants in this case) and twelve others in the Onitsha High Court and judgment was entered against the Umusiome and twelve (12) other defendants; that on appeal to the Federal Supreme Court, in Appeal No. FSC/206/60, the court in dismissing the appeal held “that the reference to Umusiome quarter should be omitted” and the judgment of the Onitsha High Court was varied to that extent; that the present defendants misconstrued the Federal Supreme Court judgment as awarding title of the land in dispute to them and therefore entered on the land and “collectively jumped on the land in dispute and started to cultivate crops, build thereon and to cut down some economic trees without the consent of Plaintiffs. This last averment was the immediate reason for the institution of this present action in the High Court Onitsha.
The defendants in their Statement of Defence denied the allegations of trespass. They averred that 1st defendant and other members of the Umusiome family farmed on the land in dispute, and that the other defendants have no farms on the land. In paragraphs 13, 14, 15 & 16 of the statement of defence the defendants averred:-
- “The 1st defendant further says that his ancestors have occupied this land for a period beyond human memory.
- The Defendants say that because their people have been in possession of this land they – the occupiers and possessors have put in tenants on the said land to cultivate the same and to tap palm trees thereon.
- The defendants say that although the Ogidis have claimed the title to this land they have never disturbed the possessions of the defendants and always stopped their cultivation of the land along Mkpia Bush known to the Nkpor people as Mgbu or Ebu.
- The defendants will at the trial plead
- Res Judicata
- Long Possession
- Laches
- Abuse of Process of Court.”
Of the witnesses called in support of Plaintiffs claim only the 2nd plaintiff gave evidence on behalf of the other Plaintiffs. He claimed that the land in dispute had always been in the possession of the Ikenga Ogidi people from time immemorial. He said that as owners, the Ogidi people live on the land, farm on portion of it, reap the economic trees and put tenants on other portions of the land. He denied that the defendants ever farmed or lived on the land except by their recent acts of trespass which gave rise to the present action.
Under cross-examination the 2nd Plaintiff as the 3rd witness for Plaintiffs had this to say:-
“We showed the surveyor our own farms where we farmed on the land in dispute but not within the area upon which the defendants trespassed. The Umusiome people did not trespass into the whole area of Owelle land but into a portion………………………
………………………………………
The palm trees were felled in several places and we showed them to the surveyor. What we showed the surveyor was the stumps of the palm trees. I cannot tell after they have been cut that I saw them. I did not see when they were being cut down. Several Umusiome people have cassava farms on the land when we brought this action.
We have seen many of their women cultivating cassava farms there. I had no cassava farms there. We do not farm there yearly. We know some of the individuals who own the cassava farms. We sue the defendants. Where we saw their people clearing the land and cultivating it.” (Underlining ours).
The 4th Plaintiffs’ witness, is one Nwafor Omem. He gave evidence, that his age group, known as the Seven Age Group supervised Owelle land. He had, at the time he gave evidence, been taking part in the supervision of the land for four years. He further stated:-
“Four years when Nkpor people trespassed on the land we informed our people and a report was made to the people. Some of the people were all these nine defendants and others. All the people had farms on the land including the nine defendants, at the time this action was brought. They had cassava farms and farms for yams.”
Under cross-examination the witness stated-
“It is only Ezeme and Silas Okonkwo who have built on the land in dispute. We the Seven Age Group saw farms belonging to the Umusiome people on the land and I know particularly those of the nine defendants ……………………………………..
……………………………………..
The Umusiome people had no market on the land in dispute. They erected stalls overnight on the land and when we saw them we destroyed them. This was about ten years ago.” (Underlining ours).
The Plaintiffs’ surveyor gave evidence and identified the plan he made for the Plaintiffs as Ex. C. Under cross-examination he admitted that he saw all the houses he showed on Ex. B (defendants’ plan). The land shown on Ex. B is part of the land shown in Ex. C. that is, the land edged ‘pink’ in Exhibit ‘B’ is part of the land verged ‘green’ in Exhibit C. He denied seeing stumps of palm trees on the land, as alleged by the plaintiffs.
The 1st defendant stated in evidence that he was born on the land and had lived there all his life. The ruins of his father’s house are on the land. He was formerly living in the house of his mother, which also was on the land in dispute before he built his own house ten (10) years prior to the time he gave evidence. He claimed to be about 50 years old and had been farming on the land since he grew up. He denied destroying any palm trees in March, 1962. He asserted that the land in dispute belonged to Umusiome people and is known as Okofia.
The 2nd defendant admitted farming on the land since he was a young man. He said that he built a house on the land. His son also built a house on the land about 2 miles distant from his.
The 3rd defendant also claimed to have been born on the land and to have erected a house at the spot where his father’s house used to be. He had been living on the land since he was born. He was one of the defendants in the 1957 case.
On the evidence before the learned trial Judge both sides claimed to be in possession of different portions of the land in dispute. At least two of the defendants claimed to have been born on the land and had lived and farmed there ever since. It therefore became necessary for the learned trial Judge to resolve the issue as to which of the two parties had exclusive possession when the alleged trespass was committed.
In the present suit O/122/62 at the Onitsha High Court, the Plaintiffs claimed 600pounds as special and general damages for trespass against the defendants as well as an order for injunction. Kaine, J., who tried the case, entered judgment for the Plaintiffs but he failed to resolve the issue as to who was in exclusive possession of the land. The learned trial Judge held that the land in dispute belonged to the Plaintiffs because of the Judgments of the several court proceedings tendered before him. He also rejected the contention of the defendants that they were not defending in a representative capacity and held that the defendants trespassed on the land without specifying the nature of the trespass and on what portion or portions.
There was uncontradicted evidence that the defendants had been farming on the land for many years and as was stated in evidence before the learned trial Judge, at least two of the defendants, apart from being born on the land, had erected buildings thereon and had lived there all their lives. These facts were in support of their defence as pleaded in paragraph 16 of the statement of Defence. The learned trial Judge did not consider any of the defences thus raised in the pleading and supported by evidence.
After commenting on the issue of title which was not an issue before him, the learned trial Judge stated in his judgment thus:-
“I may say that I can understand the predicaments of Umusiome people in this matter. The land in dispute is very close to their village. In some cases it is just behind their back houses. There is no doubt that injunction would work hardship in such cases unless something is done to cut off the land. For this reason I have spoken to the counsel for the two parties to see whether the plaintiffs could cut off the land with barbed wire fence and the plaintiffs have agreed to do so and also to bye pass any house by five feet which lies on the boundary. I am of the opinion that five feet allowance would be too narrow and I hereby order that such byepass would be 10 feet so that children might not play and fall on it when it is too close to their house. I also order that the boundary be constructed with a barbed wire fence mounted on concrete pillars along the boundary with Umusiome as shown in the plan No. EC 5/63 Exhibit “C” and that the boundary be constructed under the supervision of the police since this land has been the subject of several criminal matters arising from violence over the dispute between the parties.
There will be judgment for the plaintiffs for trespass and injunction. I am not however satisfied that special damages have been satisfactorily proved and in order to promote peace among the parties I award the plaintiffs nominal damages of 35pounds.” (Underlining ours).
On appeal before us, Mr. Ofodile, learned Counsel for the appellants, was granted leave to argue an additional ground of appeal along with the three grounds of appeal filed with the Notice of appeal. As a matter of fact he only argued grounds 2 and 4, and then together. The two grounds read-
“(2) The learned trial Judge erred in law in ordering that concrete pillar boundaries be placed between Umusiome village of Nkpor and the people of Ikenga Ogidi when this was not claimed by the people of Ogidi the plaintiffs, nor did the Umusiome defended the action in a representative capacity.
“(4) The learned trial Judge erred in law in making the order of injunction in terms of the claim or at all having regard to the defendants long and undisturbed possession and the Plaintiffs laches and acquiescence.
Mr. Ofodile conceded that appellants are not contesting the issue of title, but argued that there was evidence of long possession by the defendants/appellants. The surveyor, who made the two plans Exhibit B and C for the defendants and plaintiffs respectively, gave evidence as Plaintiffs’ witness. He admitted that he saw houses claimed by the defendants on the land in dispute. He also denied the allegations of the Plaintiffs that there were stumps of palm trees on the land. The learned trial Judge did not consider this evidence of a witness who is independent. This is some evidence of possession by the defendants and unless the learned trial Judge, for good reasons, held otherwise, he could not find for the plaintiffs as he did on the issue of possession.
It is beyond dispute that what the learned trial Judge directed to be done, that is, construction of boundaries, erection of barbed wire fence, placing of concrete pillars and allowing a distance of 10 feet between each house and the boundary, were not asked for by the Plaintiffs and no evidence was ever led about that.
Although the learned trial Judge in a part of the judgment already cited above, held that it will cause undue hardship if an injunction was granted having regard to the peculiar facts of the case before him, he nevertheless in the penultimate paragraph of the judgment proceeded to order an injunction as claimed.
Mr. Iguh, learned counsel for the respondents could not support the judgment in view of the line the learned trial Judge took in fixing an arbitrary boundary by directing the construction of pillars and barbed wire fence and at the same time granting an injunction as claimed. He also conceded that in view of the conflicting claims to exclusive possession by either party, the learned trial Judge ought to have resolved the issue before proceeding to award damages for trespass. He then asked this court to make the necessary findings of fact which the learned trial Judge had failed to do.
With respect, learned counsel for respondents must appreciate that where conflicting evidence was adduced in a court of trial, and the learned trial Judge who heard and saw the witnesses failed to resolve the conflict, it is impossible for an appeal court to make any findings in such a situation.
It is the duty of the Plaintiffs to prove conclusively that before the alleged trespass, they were in exclusive possession of the land. It must be proved, in support of the claim for an injunction that not only are the sets of trespass being continued but also that the defendants had threatened to commit further acts of trespass. The burden of proving these rests squarely on the Plaintiffs. If they fail to discharge this onus of proof, then they have failed to establish their claims and therefore the claims should have been dismissed.
For the foregoing reasons the appeal succeeds and it is allowed. The judgment of Kaine, J., in suit 0/122/62 in the Onitsha High Court is hereby set aside as well as the award of damages and costs. We substitute instead an order dismissing the plaintiffs claims for damages for trespass and injunction with costs. The defendants/appellants are awarded costs assessed at 40 guineas in the High Court and 68 guineas in this court.
SC.570/1965
