Anyasinti Umunna & Ors V. Animudu Okwuraiwe & Ors (1978)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

The appellants were defendants in Suit No. A30/72 instituted by the respondents at Asaba in the Asaba Judicial Division of the High Court of Justice, Mid-Western State (now Bendel State) of Nigeria wherein the respondents as plaintiffs claimed by their Writ of Summons and paragraph 20 of the Statement of Claim:

“(a) A declaration that the plaintiffs are entitled to the exclusive possession of that piece and parcel of land lying and situate in Asaba within the Asaba Judicial Division known as Akwulo land as shown on and verged in pink in plan No. LSU 624 filed by the plaintiffs in this suit;

(b) N4000 (Four Thousand Naira) damages for trespass; and

(c) An injunction restraining the defendants, their servants or agents and each of them from committing further acts of trespass on the said land.”

In compliance with the order of the trial court, pleadings were duly filed and served or delivered and the matter came up for hearing before Akpata, J., At the conclusion of the hearing of evidence of witnesses called by the parties and addresses of counsel, the learned trial Judge delivered a considered judgment finding in favour of the plaintiffs/respondents on all the three items of claim.

As the mis-statement of the 1st item of claim in the opening paragraph of the said judgment was brought to the notice of the learned trial Judge before costs were asked for by counsel and ordered by the learned trial Judge, the learned trial Judge expressly regretted the error before entering judgment on the 1st item of claim in favour of the plaintiffs. Thereafter he heard counsel’s application and argument on the question of costs and made his award. All these appeared on the pages of the record particularly from the first 4 lines of the judgment and the concluding portion which reads:

“This is an action brought by the plaintiffs for themselves and on behalf of the Idumugbe family of Asaba for a declaration of title to a parcel of land referred to in their Statement of Claim and plan as Akwulo (Akwu Ulo) land….

Also although there is sufficient evidence to show that plaintiffs are entitled to exclusive possession of the land in dispute, they cannot in this action be awarded “exclusive possession” against the defendants as they did not ask for it either in their Writ or Statement of Claim……The plaintiffs having established at least exclusive possession to Akwulo land, their claim for injunction is bound to succeed. The defendants did not deny farming on the land. The plaintiffs’ claim is for damages for trespass between 1967 and 1971. There is sufficient evidence in support of the claim for damages in respect of trespass to the land. The plaintiffs are also bound to succeed in respect of the claim for trespass. In the circumstances for the reasons above, an order for a non-suit is entered against he plaintiff in respect of their claim for a declaration of title. The defendants in this action that is the Odanta family (village) or Ibusa, their agents and servants are hereby restrained from farming, or doing anything amounting to an act of trespass on the land known as Akwulo land, more particularly described and verged pink in survey plan No. LSU 624 admitted in evidence marked as Exhibit A in these proceedings. The plaintiffs are also awarded N3,000.00 (Three Thousand Naira) as general damages for trespass.

Court

My attention has been drawn to the fact that the plaintiffs’ claim is for a declaration for exclusive possession to the land. The error of the court is regretted. It is, in my view, a slip which can be corrected, particularly as the court has not dealt with the issue of costs. Having regard to my findings of facts, it is hereby declared that the plaintiffs are entitled to the exclusive possession of that piece of land known as Akwulo land more particularly described and verged pink in survey plan No. LSU 624 admitted in evidence and marked Exhibit A.”

The defendants were aggrieved by the above judgment and have now appealed to this court on 6 grounds which read as follows:

“1. The learned trial Judge erred in law and upon facts when he drew mistaken conclusions derived from facts on a foundation different from the claim before the court and gave judgment on a point not raised before him.

2. The learned trial Judge erred in law in altering his judgment without first inviting the views of counsel on both sides, and which alteration was not specific as to what was altered thereby leaving his judgment in a state of confusion.3. The learned trial Judge having found as follows in his judgment

“also although there is sufficient evidence to show that the plaintiffs are entitled to exclusive possession of the land in dispute they cannot in this action be awarded “exclusive possession”; against the defendants as they did not ask for it either in their writ or Statement of Claim.”erred in law and contradicted himself, when he later held as follows “It is hereby declared that the plaintiffs are entitled to the exclusive possession of the piece of land known as Akwu Ulo land.”