Beatrice Anthony (Mrs) v. Obi Onyebashi & Ors (1974)

LawGlobal-Hub Lead Judgment Report

T. O. ELIAS, C.J.N. 

In Suit No. A/31/65 Ekeroche, J., gave judgment in the High Court, Asaba, against the plaintiff (herein appellant) in the action which she had brought against Obi Onyebashi and four others as defendants (herein respondents) for damages for trespass and for an interim injunction to restrain the defendants, their servants or agents from further erecting a concrete building on a piece or parcel of land, Umuaga Asaba, situate along Benin/ Asaba Road.

The plaintiff is the daughter of one Madam Anuchi Obi-Odilli (deceased) who was a daughter of the Umudasian for family of Asaba who were the defendants in the court below, the 1st to the 5th defendants representing the family in the suit. The relevant paragraphs of her Statement of Claim aver as follows:

“1. Plaintiff is one of the successors to the estate of late Madam Anuchi Obi-Odilli who died intestate in 1962 possessed a piece or parcel of land in dispute situate at Nnebisi Road at Asaba.

3. The land in dispute was granted to the plaintiff’s late mother Madam Anuchi Obi-Odiilli, absolutely in 1952. Plaintiff and her predecessor in title have been in continuous possession of the land in dispute ever since.
4. On the death of the plaintiff’s mother, the plaintiff together with other members of the family succeeded to the land in question as communal property.
5. The defendants are the members of the Umudasiafor family and Trustees of the family land, and are sued for themselves and on behalf of their family.
6. The land in dispute is more clearly delineated and defined as per approved plan No. PO/MW.2/65 filed with this Statement of Claim.
7. On or about the month of June, 1965, the plaintiff surveyed the land and prepared a building Plan which was made in the name of their late mother as a memorial, which plan was approved by Asaba Urban County Council preparatory to putting up a building on the land in dispute. Asaba Urban County Council’s Plan No. ATPA.65/B131 of 23/7/65 will be founded upon.
8. The plaintiff thereafter moulded about 5,000 cement blocks on the land preparatory to putting up a building on the land.
9. The defendants seeing what was happening, rushed on the land on the 17th September, 1965 and started to disturb the plaintiff’s workers.
10. The plaintiff reported the matter to Police and on anival of the Police, the defendants attacked the Police, tore some Police Uniforms and generally rioted, after which some of them were arrested.
11. The defendants have physically entered on the land, and began to make foundation for building without an approved building plan.
12. WHEREFORE plaintiff claims from the defendants, jointly and severally:

(a) 200 damages for trespass;

(b) Injunction to restrain the defendants, their servants, agents from further acts of trespass.”

The plaintiff later gave evidence in support of her averments, including the ceremony of the grant of the land (measuring 50 feet by 170 feet) at the residence of the family head. She said that her mother and herself farmed on the land until her mother’s death in 1962, before which the land the mother had made a plan for a building on the land (ex. 2); that in 1965, she moulded 5,030 brick blocks with which she had intended to erect a building on the land but which the defendants used in making a foundation on the land as she tendered ex.1 through her surveyor as the plan of the land in dispute, that, when she wept on the land on September, 17, 1965, the defendants forcibly drove her out of the land; and that the matter was later reported to the police who arrested them. The defendants, through the 1st defendant as spokesman, denied the existence of any grant of land by the family to the plaintiff’s mother. The defendants admitted having driven the plaintiff off the land.

After reviewing the evidence adduced before him by both sides, the learned trial judge dismissed plaintiff’s claim, observing:

“Unfortunately, as I have said earlier: (1) the plaintiff has not established the area of land granted her mother to be the area shown verged pink on her plan and (2) she has not proved the Corporeal Quantum of the grant and she has accordingly not established that she has any right or interest in or over the area shown verged pink on Exhibit 1, said to be the land in dispute. By her case she concedes the radical title of the said land in Umudasiafor family and so also original possession. She has not established that Umudasiafor family parted with their possession of the land to her mother not to talk of the title therein.”

Against this decision the plaintiff brought this appeal on seven grounds which learned counsel for the appellant argued together under two main heads. He submitted that the learned trial judge was wrong in having dismissed appellant’s claim on the grounds (a) that she had failed to prove the identity of the land in dispute, and (b) that she had not established the “corporeal quantum” of the land. It is fair to point out that the learned trial judge himself held that there was a grant of some land to the appellant’s mother, as when he said:

“Having considered the entire evidence on the question whether or not a grant of some land was made to the plaintiff’s mother, I am satisfied and I accept and believe the plaintiff’s evidence and that of her witnesses on the point, that the Umudasiafor family granted the plaintiff’s mother some land at Aniabor. I believe the plaintiff’s evidence that her mother took to the Umudasiafor family meeting in the house of the head of the family, the gifts which she said her mother took there. I accept and believe her evidence and the evidence of her witnesses that her mother gave the things to the family and that the family accepted and shared the gifts and that the family deputed persons amongst whom were Utomi Onianwa and Obi Awolo to go and allot land to her mother at Aniabor.

I am satisfied that the said persons and other members of Umudasiafor family went together with the plaintiff’s mother to Aniabor land and that the persons deputed by the family allotted some land to the plaintiff’s mother in Aniabor. .

That much is clearly established by evidence before me.”

After having so held, the learned trial judge posed the issues which he regarded as crucial thus: