Anyaele Chukwueke & Anor. V. Okorie Okoronkwo & Ors. (1999)
LAWGLOBAL HUB Lead Judgment Report
L. KUTIGI, J.S.C
The plaintiffs sued the defendants claiming N10,000.00 being special and general damages for trespass to a piece of land known and called “Akwakwa”, situate at Alayi in the Umuahia Judicial Division. They also claimed an order of perpetual injunction against the defendants.
Pleadings were ordered, filed and exchanged. At the trial evidence was led on both sides. A number of documentary evidence were also tendered. It is not disputed that both the plaintiffs and the defendants hail from the same village Amakalu Alayi, albeit from different families. Parties are also agreed that while the plaintiffs call the land in dispute as “Akwakwa”, the defendants refer to it as “Aja ‘Oji” land. Both sides pleaded and relied on previous courts judgments over the land in dispute.
At the end of the trial the learned trial Judge in a reserved judgment found for the plaintiffs on all their heads of claims. He concluded his judgment thus –
“From the totality of evidence before me and after considering the submissions of the learned counsel on both sides and the authorities cited. I am satisfied that the plaintiffs have proved their case. There will therefore be judgment for the plaintiffs for N9,550.00 being special damages for trespass and N350 being general damages for trespass, bringing the total to N9,900.00. I also make an order of perpetual injunction restraining the defendants, their servants and agents from entering the said land or interfering with or continuing to trespass on the said land.”
A perusal of the judgment shows that the learned trial Judge based his judgment on the judgment in a previous suit No. 129/58 where the Alayi Native Court made a declaration in favour of the plaintiffs, as per Exhibit A in the proceedings. The appeal against the Native Court’s judgment was struck out (see Exhibit B).
Dissatisfied with the judgment of the High Court, the defendants appealed to the Court of Appeal holden at Port-Harcourt. In a unanimous judgment, the Court of Appeal allowed the appeal. The judgment of the High Court was set aside and in its place a verdict of dismissal of the plaintiffs’ case was substituted. Going through the judgment it is clear that the Court of Appeal simply allowed the appeal because it was of the view that there was no evidence to show that the land in dispute in the case now on appeal was the same land over which judgment was entered in favour of the plaintiffs in Alayi Native Court, and that therefore the plaintiffs failed to prove exclusive possession of the land in dispute to ground trespass.
Aggrieved by the decision of the Court of Appeal, the plaintiffs have appealed to this court. Parties filed and exchanged briefs of argument which were adopted at the hearing and during which time oral submission were also made. Chief Williams, SAN, learned counsel for the plaintiffs has in his brief submitted two issues for determination thus –
“(i) Whether the Court of Appeal was right when it held that there was no evidence before the court to show that the land in dispute in this case was the same land over which a declaration of title was made in favour of the plaintiffs; and
(ii) whether the Court of Appeal was right when it held that the plaintiffs failed to prove that they had been in exclusive and uninterrupted possession of the land in dispute from time immemorial.”
I think the two issues can conveniently be treated and answered together. And I will do just that.
It was submitted on behalf of the plaintiffs that the Court of Appeal was wrong in its conclusion that there was no nexus between the land in dispute in the previous suits and the land presently in dispute. Counsel referred to the evidence of P.W.1 and D.W.1 and to Exhibits A & B. He said there was no dispute that Aja Oji land is the same as Akwakwa land, and that it was clear from the admission of D.W.1 in particular that the land over which the plaintiffs obtained judgment in the Alayi Native Court is the same land in dispute here. That while the Court of Appeal did not dispute the finding of the trial High Court to the effect that the plaintiffs won all case in respect of the land in dispute against the defendants but it wrongly went on to say that there was no nexus between the land in dispute then and now, completely ignoring the evidence of D.W.1 in the proceedings. He referred to pages 186, 209 and 281 – 282 of the record.
It was also submitted that although the plaintiffs must rely on the strength of their own case and not on the weakness of the defendants’ case, the plaintiffs as in this case are entitled to rely on such evidence where the defendants’ case itself supports that of the plaintiffs. That having shown that the land in dispute is the same land in dispute in the previous suits the learned trial Judge was right to have given judgment in favour of the plaintiffs. It was again submitted that since the parties knew the land in dispute, the absence of a survey plan indicating the same facts which are already admitted is unnecessary. The following cases were cited in support – Ajao v Alao (1986) 5 NWLR (Pt. 45) 802 at 806, Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360.
It was further submitted that what the Court of Appeal considered as an admission by the plaintiffs that the defendants were in possession of the land in dispute on page 275 lines 13 – 25 was actually a restatement by P.W.1 of what constituted the acts of trespass by the defendants. That P.W.1 said that the farming and quarrying of stones by the defendants were without his consent. The Court of Appeal was therefore wrong to have elevated acts of trespass to acts of possession. The case of Aboyeji v. Momoh (1994) 4 NWLR (Pt. 341) 646 was cited in support.
The court was urged to allow the appeal, set aside the judgment of this Court of Appeal and restore that of the trial High Court.
Responding, Mr. Ofodile, learned counsel for the defendants, submitted that the Alayi Native Court case (Exhibits A & B) No. 128/58 has no survey plan to show exactly the extent of the land over which title was decreed in favour of the plaintiffs in that case. That it was also clear that while Exhibits. A & B were fought by the parties in their personal capacities; the instant case is a representative action. Exhibits A & B therefore ought to have been discountenanced by the courts. He said the mere tendering of Exhibits A & B was not enough proof of the relationship between the land presently in dispute and that previously litigated upon and that, this is more so having regard to the absence of superimposed survey plans. The Court of Appeal was therefore right when it held that there was no nexus between the lands in dispute and that having regard to the materials before the court, it was justified in dismissing plaintiffs’ case title not having been established.
It was also submitted that the Court of Appeal was right when it made the finding that the defendants had exclusive and uninterrupted possession of the land in dispute, the plaintiffs having failed to establish certainty of the land in the Alayi Native Court case being the same as that in the instant proceeding. The following cases were cited amongst others –
Seismograph Service (Nig.) Ltd. v. Chief Eyiafe (1976) 9-10 S.C. 135, Ogungbemi v. Asamu (1986) 3 NWLR (Pt. 27) 161.
We were urged to dismiss the appeal and affirm the decision of the Court of Appeal.
Now, the plaintiffs in their amended statement of claim pleaded in paragraphs 3.5 & 6(1) as follows-
“3. The land which is the subject matter of this suit known as and called “Akwakwa” is situate at Alayi in the Umuahia Judicial Division.
- The said Akwakwa land (hereinafter called the land in dispute’) was the subject matter of Alayi Native Court suit No. C/S.129/58 between the plaintiffs’ people and the people of the defendants in which the plaintiffs won. The said judgment has not been set aside and still subsists between the parties.
“(6) Since the said judgment, the plaintiffs remained in possession of the said land in dispute without any interference from the defendants or anyone claiming through them and have so remained in possession at all times material to this action.”
In response, the defendants in their amended statement of defence pleaded thus –
“3. The defendants admit paragraph 3 of the statement of claim save and except that the land is called Akwakwa which is denied by the defendants and to which the plaintiffs are put to strict proof. The land is known as and called Aja Oji.”
“5. In reply to paragraph 5 of the statement of claim the defendants aver that in suit No. 129/58 the plaintiffs obtained judgment against the defendant in his absence. On 20/10/59, the Assistant District Officer ordered that both parties should file plans prepared by a licensed surveyor within six months. The case was then adjourned for no specific date for continuation.
- But on 10th May 1960 and 11th May 1960 without any hearing notices being served on the defendant, the cases Nos. 129/58 and 128/58 respectively appeared before the court. The plaintiffs appeared with a plan and the defendants who were not aware that the cases were coming up that morning did not appear nor did he authorise any person to represent him. The defendants’ appeals were struck out.”
“9. In reply to paragraph 6 of the statement of claim, the defendants deny that the plaintiffs had ever been in possession of the land in dispute. The defendants had been in possession of the land …”
The P.W.1, in his evidence-in-chief on pages 153 – 154 of the record said as follows –
“I know the land in dispute called ‘Akwakwa’ situate at Amakalu Alayi within the jurisdiction of this court …We had a title action against the defendants in Alayi Native Court and we won. In that case we were represented by Ene Elom the defendants were represented by the 1st defendant. This is a certified true copy of the judgment of that case. Tendered no objection admitted and marked Exhibit A. The defendant in that case appealed. The District Officer looked into the appeal and struck it out. This is the judgment of the District Officer tendered no objection admitted and marked Exhibit B … We have been in possession of the land in dispute all the time. The acts of trespass complained of were committed on 19/1/80. The defendants did not get my consent to enter the land in dispute or my permission.”
For the defendants, the D.W.1 testifying on pages 186 – 187 of the record had this to say –
“The land in dispute called Ajaoji is owned by the defendants … The land in dispute is Ajaoji but plaintiffs in the present case call it Akwakwa.”
Under cross-examination he said –
“We appealed when case suit No. 129/58 was dismissed. The appeal was struck out. The land in dispute is Ajaoji land … We sued the plaintiffs in respect of the land in dispute in 1972. The land subject matter of this suit is the same thing as the land the subject of the suit in 1972. I know the land very well. The action of 1972 was dismissed. We did not appeal.”
It is clear that both from the pleadings and evidence before the trial court that both sides know the land in dispute. There vas evidence that “Akwakwa’” land is the same as Ajaoji” land. The P.W.1. tendered Exhibit A, as the judgment conferring title on the plaintiffs. The defendant appealed against Exhibit A and their appeal was struck out as per Exhibit B. I think there was no doubt whatsoever that the land over which the plaintiffs obtained judgment in the Alayi Native Court is the same land in dispute here now. What is more, the defendants admitted and the trial court rightly found that the plaintiffs won all cases (1958 & 1972) in respect of the land in dispute against the defendants. I am clearly of the view that the Court of Appeal was wrong when not disputing all these facts it still went on to hold that there was no nexus between the land in dispute in the previous suits and the land in dispute in the present case. Where there are specific findings of fact on issues relating to proof of title by the trial court, a court of appeal will be reluctant to interfere with such findings. It is settled that in considering proceedings in Native Courts the court should look at the substance of the action and not the form. The pleadings and evidence also show that the 1958 and 1972 suits were all fought in representative capacities and not in personal capacities as Mr. Ofodile would want us to believe. It is equally settled that the judgment of a competent court subsists and is binding until set aside on appeal or by other judicial proceedings.
There is no doubt at all that the evidence of D.W. 1, above supports the plaintiffs’ case in all material particulars which the plaintiffs are entitled to use because the rule that a plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case, does not apply where the defendant’s case (as in this case) itself supports that of the plaintiff and contains evidence on which the plaintiff is entitled to rely (see for example Ajao v. Alao (supra).
Having established that the land over which plaintiffs obtained judgment in the previous suits (Exhibits A & B) is the same as the land now in dispute, the learned trial Judge was right when he held that –
“The plaintiffs have proved their title to the land in dispute based on previous judgments in their favour.”
The P.W.1 made it clear above that the farming and quarrying of stones by the defendants were without his consent. And that they (plaintiffs) have been in possession all the time until sometime in 1972 and on 19/1/80 when the defendants disturbed their possession thereof. In view of Exhibits A & 8, these acts of the defendants were clearly acts of trespass which should not have been elevated to acts of possession as the Court of Appeal appeared to have done (see Aboyeji v. Momoh (supra).
The two issues are consequently resolved in favour of the plaintiffs. The appeal therefore succeeds and it is hereby allowed. The judgment of the Court of Appeal is set aside while that of the High Court delivered by Ononuju J., on 14th day of February, 1986 is restored. Costs of ten thousand naira (N10.000.00) are awarded in favour of the plaintiffs. The plaintiffs are also entitled to costs in the court below which I assess at N500.00.
SC.133/1993