Dominic Ugwu & Ors V. Egbuaba Igwe Ogbuzuru & Ors (1974)

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SOWEMIMO, JSC.

When an aggrieved party or his counsel argues an appeal before us, it is necessary that such argument should come within the confine of a rehearing as provided by Order 7 Rule 2 of the Rules of the Supreme Court of Nigeria. The arguable area of grounds of complaints depends on a distinction being made between inferences drawn on fact and direct findings of fact based on an assessment of the credibility of witnesses as contained in the judgment of the lower court. While this court will freely reverse the judges’ findings in the former case, in the latter case it will seldom do so and even then, only with great reluctance. (See Sturge’s Basic Rules of the Supreme Court, 3rd Edition, page 139, paragraph 1). In the present appeal, it does not appear that attention was given to this distinction in the grounds of appeal canvassed before us.

PAGE| 2 The judgment of the lower court is basically one of fact, namely, whether the western boundary of the land in dispute as alleged by the plaintiffs, or whether that alleged by the defendants, is the correct one. The learned trial Chief Justice in this case, sitting at an Enugu High Court, held as a fact that the boundary as pleaded and as described in evidence by the plaintiffs is the correct western boundary and gave judgment granting a declaration of title of the disputed land to the plaintiffs. It is against that judgment that the defendants have appealed to this court.  

The claim before the lower court as filed by the plaintiffs is for a declaration of title to a piece of land set out in plan Exhibit O, and this the defendants disputed. The learned trial Chief Justice set out the issue in dispute thus:- “Broadly speaking, the plaintiffs’ case is that the lands of the people of UBAHU clan, to which they belong, are separated from those of NIKE clan, of which the UGWU OMU and AMOJI defendants are members, by the Western boundary as described above; that all lands to the east of this boundary, and stretching therefrom, up to and beyond IDODO River (which include the disputed land) belong to the plaintiffs’ clan, and all lands west of the said boundary (the OGBA ACHIKPA and NGENE MBEKWU land of Amoji Nike people, and that of Nkwubo Uno Nike being contiguous thereto) are owned by NIKE (Defendants’) clan; that the disputed land is owned, from time immemorial, by the plaintiffs’ (OMUNO) people.

On the other hand, the defendants say that the natural boundary between the lands of their (NIKE) clan and those of the plaintiffs’ (UBAHU) clan is the IDODO RIVER: that the land in dispute is on their (that is, western or Nike) side of this natural boundary, and has been in their exclusive possession or ownership time without memory.”   We are in complete agreement with this statement as a proper consideration of the pleadings and evidence before the court below. After an exhaustive consideration of the evidence of both parties before him, the learned Chief Justice in concluding his judgment said:- “To include, I accept the evidence of the Western boundary of the disputed land, given by Samuel Igwe Nnamene (P.W.12), a member of the plaintiffs’ family and by surveyor Chidolue (P.W.13), as establishing the point. That boundary stretches from OWO stream, in the south, to the Omijiakpa stream in the north, up to the point, where it joins the IDODO River. I am satisfied on the evidence as a whole, that all the land enclosed respectively in the Plan Exhibits ‘L’ and ‘O’ by the said western boundary, IDODO River and the Enugu/Oghahu railway line, which includes the whole of the disputed land, belongs to the plaintiffs, OMUNO (Ubaju) people; that it is the Western boundary aforementioned that separates the plaintiffs’ lands from those of the defendants.

Accordingly, I hold that the plaintiffs have discharged the burden of proof imposed on them by law. And I reject the defendants’ story. In the circumstances, I grant to the plaintiffs of OMUNO Ubaju, the declaration sought by them in this action.”

PAGE| 3 Learned counsel for the appellants filed and argued three grounds of appeal. Grounds 2 and 3 were argued together, and his submissions on these two grounds were that the plaintiffs’ plan, Ex. O, was not admissible in evidence. In our view this does not seem to be in accord with page 104 of the record of proceedings under “re-examination”, where the following was recorded:- “Re-examined by Anyamene: Q You have drawn a new plan No. EC 301/71 of the land in dispute, in which you incorporated your evidence last week as to the north-east boundary, eastern boundary and southern boundary of the land in dispute, which you said you adopted from Exhibit ‘A’, the plan made by Surveyor Chukwura for the Plaintiffs in this case?   A. Yes. Q. On this plan No. EC 301/71, the land in dispute in this case is shown verged pink? A. Yes Plan No. EC 301/71 tendered. Exhibit ‘O’. Q. You superimposed Exhibits ‘C’ and ‘D’ (plans of Nos. 1 to 5 defendants and of Nos. 6 to 8 defendants, respectively) on Exhibit ‘O’ (amended plaintiffs’ plan)? A. Yes, I did. And the resultant plan is Plan No. EC 301B/71, and it supersedes Plan No. EC 236B/71 (Exhibit ‘M’) Q. And you have also super-imposed Exhibit ‘A’ (Plan No. MEC/79/65) made by Chukwura on Exhibit ‘O’ made by you, which shows that while the western boundaries of the two plans differ, the north-east, eastern and southern boundaries are the same?

PAGE| 4 A. Yes. Plan No. EC 301B/71 tendered. Exhibit ‘P’ plan No. EC 301A/71 tendered. Exhibit ‘Q’ supersedes Exhibit ‘N’. ANYAMENE: I apply to amend PLAN No. MEC/79/65 in the Writ and in paragraphs 3 and 9 of the amended Statement of Claim to Plan No. EC 301/71. OBI OKOYE – No objection. Orefo- No objection. COURT: Application granted and amendment sought made accordingly. Close of case for the Plaintiffs.”  

It would appear from the record that Exhibit ‘O’ was admitted in evidence without any objection by the defendants/appellants as the amended plan of the plaintiffs/respondents which was made by surveyor Chidolue (P.W. 13). Learned counsel contended that the surveyor did not carry out the survey of the land in a true and precise manner, that is physically, and that, therefore, the dimensions given by him should not be admitted as being so satisfactory as to justify a court in granting the declaration sought. It would seem that learned counsel did not consider what the learned trial Chief justice stated in his judgment to be the land in dispute. We wish to refer in this respect to this portion of the judgment, especially when we consider that what was actually in dispute was the Western boundary.

With regard to the plaintiffs claim, the learned Chief Justice had this to say:- “Accordingly, Surveyor Chidolue has produced two plans of the land in dispute, namely, Exhibits ‘L’ and ‘O’, in which he surveyed only the Western boundary of the said land. With regard to the northern, eastern and southern boundaries of the disputed land, as depicted on these two plans, he adopted the corresponding boundaries of the said land as shown on Surveyor Chukwura’s plan, Exhibit ‘A’, which the plaintiffs agree were accurately delineated by him. While on the plan, Exhibit ‘O’, the southern boundary of the disputed land is shown verged pink, on the other plan, Exhibit ‘L’, the same is shown by means of broken red lines.

From the foregoing it follows that the western northern and eastern boundaries of the land in dispute verged pink on the plan, Exhibit ‘O’ are the same as the corresponding boundaries edged pink on the plan, Exhibit ‘L’, but that the southern boundary of the said land, bordered pink on Exhibit ‘O’, corresponds to, and is the same as, the southern boundary indicated by red broken lines on Exhibit ‘L’. The whole of the Western boundary surveyed by Mr. Chidolue, as shown on his two plans, Exhibits ‘L’ and ‘O’, is constituted from South to North as follows:-

PAGE| 5 (1) by the OWO stream, from its junction with the Enugu-Ogbaho railway line due north-west, to its junction with the Owachi stream; (2) then due north-west, along Isi-Okakpu stream, to the junction of that stream with Ngene Akpatawo stream; (3) Approximately due west and north-west across two foot-paths, then along Iyiura stream due north, crossing another footpath near Olu (Mahogany) tree; (4) still approximately due north to a second Olu (mahogany) tree; (5) still due north to another footpath near Inyi tree; (6) then approximately due north-east to Mba tree, and thence to Uchakulu tree; (7) finally, still due north-east to the Omijiakpa Lake, the source of Omijiakpa stream, then along that stream to a point where it crosses the eastern boundary of the disputed land, as it flows on to empty itself into the Idodo River.”  

The contentions of learned counsel for the appellants that the identity of the land was not established would seem to be a misconception of the portion of the evidence of plaintiffs’ surveyor, Mr. Chidolue (P.W. 13) which we have earlier on quoted. An amended plan was prepared and tendered in evidence without any objection by the defendants and marked Exhibit ‘O’. In that plan evidence was led that the plan of 1st to 5th defendants, Exhibit ‘C’ and that of the 6th to 8th defendants, Exhibit ‘D’, were super-imposed on the amended plaintiffs’ plan, Exhibit ‘O’.

We are, therefore, clearly of the view that not only was the plan of plaintiffs’ land properly delineated on Ex. ‘O’ but also that that of the defendants’ was super-imposed, so that all matters in dispute on the boundaries were clearly before the court. We, therefore, do not agree with the contention of learned counsel for the appellants on grounds 2 and 3, but agree with the learned trial Chief Justice that Ex. ‘O’ to which he tied his award of declaration of title in favour of the plaintiffs was clearly identified as the land in dispute. We are also of the view that the case of Mathew Akubueze and Others v. Nzonwanene Nwakuche (1959) 4 F.S.C. 262 is distinguishable from this case because in that case the plaintiffs’ evidence in respect of the land claimed by them was at variance with the contents of their plan and therefore the identity of the land was not clearly established there. For the above reasons, the complaints on grounds 2 and 3 as canvassed before us fail.