Simon Ojiako & Anor V. Obiawuchi Ewuru & Ors (1995)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

In paragraph 29 of the Further Amended Statement of Claim, the Plaintiffs claimed against the defendants jointly and severally as follows:

“29(a)A declaration of title to all that piece and parcel of land verged PINK in Plan No. MEC/129A/72 filed with the original Statement of Claim, known as and called “Abo” land or “Ala Abo”, situate at Oshina, within jurisdiction.

(b) an injunction restraining the defendants, their servants or agents, from further acts of trespass on the said land verged PINK, which is outside the portion allotted to them as customary tenants.

(c) General Damages of N200.00 for trespass.”

After the filing and exchange of pleadings the case proceeded to trial at the trial the plaintiffs called a total of ten witnesses in support of their case while nine witnesses testified for the defendants.

Briefly stated the relevant facts are that the Plaintiffs claim ownership of a large area of land shown and verged PINK in their plan Exhibit A. The same land in dispute is also verged PINK in the defendant’s plan, Exhibit K. The plaintiffs claim that the land in dispute is surrounded by an ancient EKPE WALL and EKPE NKORO (trench) and that they have over several generations exercised maximum acts of ownership and possession over the same. They claimed that it was during the life time of their ancestor Ezemkpu that some members of the Defendants’ family were allowed to live as customary tenants in the area verged yellow in Exhibit A on payment of yearly tribute. When a member of the Defendants’ family went outside the area allotted to them and built a house, the plaintiffs’ family had the same demolished. In 1941 when the defendants’ people again trespassed on the plaintiffs land, a native arbitration held by elders declared plaintiffs as owners of the land. In 1969 the Defendants again broke and entered on the Plaintiffs’ land verged PINK in Exhibit A, thereby giving rise to the present suit.

The Defendants on their part claimed that the land verged GREEN in their plan Exhibit K including the area in dispute verged PINK, descended unto them by inheritance from one OSINA in accordance with native law and custom, and that they have from generation ‘to generation been exercising maximum acts of ownership and possession over the said land. That they were and still are in exclusive possession of the area verged YELLOW in Exhibit A adjourning the area in dispute verged PINK in the same exhibit. They said no member of the Plaintiffs family had ever lived on any part of the land in dispute.

At the conclusion of evidence on both sides, the learned trial Judge decided to visit the locus in quo, apparently to see for himself the existence or non-existence of the EKPE WALL which the Plaintiffs had claimed surrounded the land in dispute and which formed the boundary between the Plaintiff land and defendants land and which would be crucial to the resolution of the dispute.

After the visit to the locus in quo and taking addresses, of counsel on both sides, the learned trial Judge in a reserved judgment declined to award title to the Plaintiffs over the land claimed and verged PINK in their Plan (Exhibit A) for uncertainty of its Eastern boundary. He however, gave judgment in their favour for injunction and restrained the Defendants perpetually

“from crossing the Western boundary of the area verged PINK to enter upon the PINK area which is outside the portion allotted them as customary tenants”.

The Plaintiffs were also awarded N150,00 as damages for trespass.

Being dissatisfied with the Judgment of the High Court. the Defendants appealed to the Court of Appeal in a reserved judgment delivered on 12th July 1991 carefully considered all the issues submitted to it for resolution and allowed the appeal. The judgment of the High Court was set aside and an order dismissing Plaintiffs’ claim was entered.

Being aggrieved by the decision of the Court of Appeal the Plaintiffs have now appealed to this Court. Both sides filed and exchanged briefs of argument.