Chief Yakubu Kakarah & Anor V. Chief Okere Imonikhe & Ors (1974)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

The respondents to this appeal, as plaintiffs in the High Court, Auchi, Mid-Western State, had sued the appellants, as defendants for:

“1. A declaration of title to a piece of land known as OWEMI land in Uzairue Clan, Etsako Division within the Ubiaja Judicial Division and will be more properly defined in a plan to be filed thereafter.

2. The sum of 200 Pounds being general damages for trespass (committed by the defendants between 1964 and 1968 upon the said land).
3. Perpetual injunction restraining the defendants and their agents or servants from further trespass on the said piece of land.”

The parties duly filed their pleadings and hearing in the case commenced on the 20th January, 1971, and ended with the addresses of counsel on the 30th March, 1971 on which date the learned trial judge reserved judgment in the case indefinitely. Judgment was eventually delivered on the 13th April, 1971 on which date and before delivering his judgment the learned trial judge, obviously aware himself of the inordinate delay in giving judgment, made some observations evidently excusing the delay. By that judgment, he gave in favour of the plaintiffs against the defendants with costs and concluded his judgment thus:

“In view of all the foregoing, the judgment of this Court is as follows:

(i) That the plaintiffs are hereby granted a declaration of title to the land delineated and described in Exh. “A” as Iyamo land and that their title of course, extends to and covers the spots edged “Pink” i.e. the burrow pits marked in the Survey Plan i.e. in Exh. “A” as points A, B, C, D and E respectively.

(ii) That the claim as to trespass against the defendants is not proved and is therefore refused and furthermore, the special relief sought as regards perpetual injunction is accordingly refused.

The crux of this case being an action for declaration of title as to land comprised in Exh. “A” and since the plaintiffs have been adjudged owners of the said land, they are entitled to cost of these proceedings.”

The defendants have now appealed to this Court against that judgment on the grounds, firstly, that the learned trial judge had given judgment against them for declaration of title to an area which the plaintiffs never claimed and, secondly, that in view of the long lapse of time between the conclusion of the hearing and the delivery of judgment, the learned trial judge had lost his impressions of the witnesses and the tenor of their evidence and, as such, his judgment is not supported by the weight of evidence.

There were originally two defendants to the action, the present respondents and a Company described as Dumez (Nigeria) Ltd. As stated before, the parties filed their respective pleadings. By their amended statement of claim, the plaintiffs aver that they are Iyamo farmers of Iyamo village in the Uzairue Clan in Etsako Division of the Mid-Western State of Nigeria and that the defendants are also farmers of Ogbido village in the Uzairue Clan, whose ancestors had, some one hundred years ago, settled in that village, which has always been a part of Iyamo land, with the permission of the progenitors of the plaintiff and on condition, inter alia, that they should not under any circumstances alienate any part or portion of Iyamo land. Paragraphs 7, 8, 10, 17 and 21 of the plaintiffs’ statement of claim read as follows:

“7. The parcel or piece of land in dispute is the area marked pink in the plan filed with original statement of which land forms part of the Iyamo land otherwise called OWEMI and marked yellow in the said plan.

8. The people of Iyamo have common boundary with Ukpilla people to the Nonh, Elele and Afowa people to the South and South-East and Iyore Ayoshene to the East and also Ijukwu and Avia people to the West.
9. That the area in dispute is a portion of Iyamo land situate and lying to the East of Jettu-Ukpilla Road.
10. The plaintiffs’ ancestors also restricted the defendants’ ancestors not to let or sublet any of the said parcel of land to strangers.
11. That the defendants between 1964 and 1968 caused a breach of the customary covenant by permitting DUMEZ (Nigeria) Limited, compensation of 200 Pounds for the said land without the consent or authority of the plaintiffs.”

The plaintiffs’ statement of claim also avers that between 1964 and 1968 a Company, Dumez (Nigeria) Ltd., dug burrow pits “on the said land” and that the defendants claimed monetary compensation from the Company for these acts of “waste and alienation”. Both the present respondents and the Company, Dumez (Nigeria) Ltd., filed statements of defence. In its own statement of defence, the Company stated that it duly paid monetary compensation to representatives of both the plaintiffs and the defendants, although, as it averred in paragraph 3 of its statement of defence:

“3. As regards paragraph 3 of the amended statement of claim, the 3rd defendant says it entered and excavated and removed earth from the said parcel of land but did not exceed the authorised limit of the Jattu-Ukpilla Road area and the said earth was excavated and taken for the construction and/or maintenance of the Jattu-Ukpilla Road on behalf of, and with the permission and approval of the authorities responsible for the reconstruction and/or maintenance of the said Road, namely the Mid-Western Nigeria State Ministry of Works, Lands and Transport now Ministry of Works and Housing. ”

The statement of defence of the present respondents denied the substantive averments in the plaintiffs’ statement of claim and states that “Iyamo village is one of the nineteen villages that constitute Uzairue Clan” and that one Udo, the original founder of Ogbido village, was one of the first set of settlers who migrated to Uzairue and founded some of the several villages that now constitute the Uzairue Clan. These defendants aver further, by their statement of defence, that all Owemi land is communal property of all the members of the Uzairue Clan and paragraph 7 of their statement of defence reads thus: