Paul Nwazuh Nkwo & Ors V. Iboe (Diokpa Ekpechor Ebu) & Ors (1998)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

By a writ of summons issued in the High Court of former Bendel Slate of Nigeria in the Asaba Judicial Division, the plaintiffs representing themselves and the people or family of Umuagu of Illah sued the defendants in respect of a piece or parcel of land situate between the two streams of Iyi-Oliakwukwo to the north and Iyi-Ukwu to the south of the land. The defendants were sued in a representative capacity for and on behalf of the people or family of Ekpechor of Ebu. Pleadings were ordered, filed and exchanged and subsequently amended. The plaintiffs also filed a reply. In the course of the action in the trial High Court, the original 1st and 2nd plaintiffs died and were substituted by Paul N. Nkwo and Vincent Olidun. By order of the court the 4th plaintiff Onyekagba Ogogba was added. The claims of the plaintiffs as per their amended statement of claim are as follows:

“(i) A declaration of the plaintiffs’ title to the land in dispute excluding the areas verged green and violet (i.e. a declaration of their right of occupancy under the Land Use Act, 1978 No.6 and all laws relating thereto to the land in dispute).

(ii) N5,000.00(Five thousand Naira) being special and general damages for trespass on the said land.

(iii) A perpetual injunction restraining the defendants, their servants and agents from henceforth entering the land in dispute and from committing any further or future acts of trespass whatsoever thereon.

PARTICULARS OF DAMAGES

Special:

(a) 20 Kolanut trees destroyed at N5.00 N100.00

(b) 50 palm trees felled at N10.00 N500.00

(c) 10 Iroko trees felled at N2,000.00

N2,600.00

N2,400.00

General Damages N5,000.00”

At the trial plaintiffs called 10 witnesses whilst the defendants called 3 witnesses. At the close of trial and after addresses by learned counsel for the parties, the learned trial Judge, in a well considered judgment, reviewed the case for both sides and after evaluating same found that the boundary between the parties is the Iyi-Ukwu stream as contended by the defendants and not the Iyi-Oliakwukwo stream as contended by the plaintiffs. He accepted the traditional evidence as given by the defendants and rejected that of the plaintiffs. In the end, he found that the plaintiffs failed to establish their case and dismissed all their claims.