Agbino Obioma & Ors V. Lawrence Emeye Olomu & Ors (1978)
LawGlobal-Hub Lead Judgment Report
G. S. SOWEMIMO, JSC.
The judgment on appeal before us is in respect of two consolidated Suits W/95/72 and W/110/72. In the first suit, the plaintiffs, who are members of Ebite family claimed a declaration of title to a piece of land on Effurun/Ekpan Road, the plan of which was tendered in the case as Exhibit A, N600.00 damages for trespass and an order for perpetual injunction and any other reliefs.
In the cross action filed by the defendants in the first suit, as members of Agbede family, against the plaintiffs, the claim is for a declaration of title to a piece of land on the same road, as stated in the plaintiffs’ claim, the plan of which was tendered as Exhibit B and an order of perpetual injunction. The learned trial Judge AKPATA, J., at the Bendel State High Court, sitting at Warri, delivered judgment on the 5th of December, 1974 in favour of the defendants in respect of their cross action but to a smaller area of land which is the same area of land as in Exhibit A, which the plaintiffs claimed in the first suit, and which claim was dismissed. We may, as well, point out that the plaintiffs’ surveyor, whilst in the witness box, superimposed the land shown in Exhibit A on the land shown on Plan Exhibit B, which is the defendants’ plan, in pencil marks, and the defendants’ surveyor on the other hand produced a plan on which he had accurately superimposed the area of Exhibit A on Exhibit B. With the exception of a few discrepancies, the land on Exhibit A is definitely within the land in Exhibit B on all sides, and the whole land falls within the eastern side of the land claimed by the defendants in Exhibit B. As a matter of fact, it forms only a small portion divided into two by a road – see Exhibits B1 and B2.
The learned trial Judge in his judgment stated inter alia as follows:- “On the totality of the evidence adduced before me, I am of the view that the land along Ekpan Road in the area in dispute owned by Onoseri was shared amongst some of his children and that the defendants’ ancestors Ajomata was given a portion of the land. I am strengthened in my view by the Survey Plans Exhibit B and Exhibit B2. In these exhibits, it is shown that members of the defendants’ family have rubber trees and other traditional trees outside the area claimed by the Plaintiffs and contiguous to the area in dispute. The issue, therefore, is the ownership of the area verged red in Exhibit A.” After a reference to a portion of a judgment of this court in L. A. Odunsi, Ojora of Lagos and 2 Ors. v. Francis E. Pereira and Anor. (1972) 1 S.C. 52 at page 64 and after a review of the pleadings in both suits, the learned trial Judge concluded as follows:- “In the circumstance, the plaintiffs are only entitled to a declaration of title in respect of the area marked ‘Ebite Family Land not in dispute’ – Area 8650 sq. yd. in the plan No. LSU 241 which is Exhibit A. The plaintiffs claim for a declaration of title in respect of the area verged red in the said plan No. LSU 241 and for damages and injunction is bound to fail. It is accordingly dismissed.
There is sufficient evidence to show that the area in dispute verged red in Exhibit A was the area Agbedeye, Titi Majemite (the 4th plaintiff witness) Oyiti Irero and other persons referred to by the 2nd plaintiff witness farmed on. I hold that these persons farmed on the land by virtue of their membership of Agbede family, Agbedeye of course being a wife at the material time to Mereti Majemite.
PAGE| 3 “In the circumstance, a declaration of title is hereby entered in favour of the Defendants who are Plaintiffs in Suit No. W/110/72 in respect of the area verged red in Exhibit A. The area claimed by the Plaintiffs in Suit No. W/110/72 far exceeds the area in dispute as shown in Exhibit A. Although they have successfully proved their boundaries to the north and south, I am, however, not satisfied with the testimony of the 4th and 5th defence witnesses touching on the boundaries with Agbamu and Akposio families.
In the circumstance, I have no alternative but to non-suit the Defendants (Plaintiffs in Suit No. W/110/72) in respect of the area outside the area in dispute in Exhibit A and the superimposition in Exhibit B, i.e. the area outside Exhibit B1 in Exhibit B. In effect, the defendants are non-suited in respect of the area outside the area verged yellow and marked 1 and 2 in Exhibit B2. “The plaintiffs (Defendants in Suit No. W/110/72) and all other members of Ebite family, their servants and/or agents are hereby restrained from entering the area verged red in Exhibit A and verged yellow and marked 1 and 2 in Exhibit B2.” On appeal to this court, Mr. G. O. K. Ajayi, learned counsel for the appellants, argued the following grounds of appeal:- “(1) The judgment of the learned trial Judge was against the weight of evidence. (2) The learned trial Judge erred in law in giving judgment for declaration of title in favour of the Defendants (Plaintiffs in Suit No. W/110/72) in respect of the area edged RED in the Plan Exhibit A filed by the Plaintiffs when:- (i) The claim of the Defendants (as Plaintiffs in Suit No. W/110/72) was in respect of a large parcel of land edged PINK in the plan filed by them (ii) The learned trial Judge had held that the Defendants (as Plaintiffs in Suit No. W/110/72) had failed to prove the boundaries of the land claimed according to their said plan in their Writ and their Pleadings (iii) The Defendants (Plaintiffs in Suit No. W/110/72) had not made claim for declaration of title in respect of the smaller parcel of land edged Red and claimed by the Plaintiffs in their Plan Exhibit A. (iv) The learned trial Judge had in fact non-suited the Defendants (as Plaintiffs in Suit No. W/110/72) in respect of their claim to declaration of title to the land claimed by them in their plan. (3) The learned trial Judge erred in law in not dismissing the defendants’ claim after he found that they had not proved the boundaries of the land claimed.”
Learned counsel submitted that in considering the claim in W/110/72 it was not open to the learned trial Judge to give judgment on a portion of land which is not the subject matter in dispute in that case. He submitted that once the learned trial Judge had held that the plaintiffs, in that suit, having failed to prove, to the satisfaction of the court, the boundary in the west, the claim should have either been dismissed or non-suited. On the other hand, Dr. Mowoe, learned counsel for the respondents, i.e. Agbede family, submitted that since the Plan Exhibit B2 was admitted in evidence and since the learned trial Judge accepted as accurate that the area verged yellow in Exhibit B is the same as the area verged red in Exhibit A, it was open to the learned trial Judge to give declaration of title to the land which is within the larger area Exhibit B though the larger area was found to be unsatisfactorily defined on the western boundary.
We have read the pleadings in the two consolidated suits, and the issue that was fought out by the parties, was as to whether the piece of land shown in Exhibit A was given as marriage gift to Agbedeye, a member of Ebite family, when she married Majemite, a member of the defendants, Agbede family, and that Agbedeye pledged it to members of the family of Agbede, and which the Ebite family sought to redeem or, in opposition to this, that the Agbede family claimed it as theirs both in their averments and evidence, and which was accepted by the learned trial Judge, that the land originally was a portion of land shared to the ancestor of Agbede family, one Ajomata. The judge also held that Agbedeye who died childless, and Titi, a member of Agbede family, were only granted farming rights on the land and that the radical title to the land remained in the Agbede family. It was because of the consolidation of the two suits that the piece of land marked Exhibit A and superimposed on Plan Exhibit B as Exhibit B2 verged Yellow, that not only the area verged yellow became a subject matter of dispute in the two suits but also the larger area of land which is outside the area verged yellow and which is still within the area edged pink in Exhibit B.
In support of the contention of learned counsel for the appellants, attention has been drawn to the following cases:- (i) Chief Yakubu Makarah and Ors. vs. Chief Okere Imonikhe S.C. 125/73 delivered on the 19th of April, 1974 and reported in (1974 4 S.C. page 151 at page 166 to 168.)
Other Citation: (1978) LCN/2096(SC)