Chief Roland Tukuru & Ors. V. Chief Nathans Sabi & Ors. (2004)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG  AKAAHS, J.C.A. 

In their amended statement of claim, the plaintiffs who instituted the action in a representative capacity, claimed against the defendants also in a representative capacity the following reliefs:

“(i) A declaration of title of land known as ‘Opuadino’ situate in Koluama town in Koluama Division.

(ii) (N400) N800.00 general damages for trespass in that the defendants wrongfully entered upon the said plaintiffs’91 land which has been in the said plaintiffs’ peaceful possession by giving it to the Nigerian Agip Oil Company Limited, and by tapping palm wine on the plaintiffs’91 land without paying the customary rent.

(iii) A perpetual injunction restraining the defendants, their servants and or agents from entering upon the said land or presenting themselves as owners of the land or claiming any interest on the land or from committing any other form of trespass on the said land.”

The amended statement of claim dated 30th day of May, 1974 was filed on 22/7/75. The amendment only affected the plan filed along with the statement. The original statement of claim referred to plan No. OK 196 dated 12th March, 1974 but in the amended statement of claim the plan filed along with the statement is plan No. OK 324 dated 9th June, 1975. The defendants’ statement of defence dated 7th day of January, 1975 was filed on 8/1/75.

An application to amend the statement of defence to plead an Intelligence report and a map drawn in 1931, showing that some settlements in the disputed land were in Oporoma District after the plaintiffs had closed their case was dismissed on 15/7/91. The dismissal was based on the grounds that the documents sought to be pleaded were in existence long before the action was filed and Opuadino was not specifically named in the report and so the report was irrelevant. The defendants did not join issue with the amended plan OK 324 of 9th June, 1975.

The matter went to trial with both sides calling evidence. At the end of the trial, the learned trial Judge observed in the course of delivering his judgment on 18/5/92 that the plaintiffs did not adduce that type of evidence that will entitle them to succeed. He then dismissed the plaintiffs’ claims in their entirety. The plaintiffs were dissatisfied with the judgment and appealed to this court by filing the omnibus ground of appeal along with the notice of appeal. They later sought leave and added five additional grounds. The notice of appeal was accordingly amended.

Four issues were formulated in the appellants’ brief as follows:
1. Whether a plaintiff, as the appellants were in this case, is required to prove a fact admitted by the defendant?

2. Whether section 149(d) of the Evidence Act is applicable to witnesses, and applies where a defendant admits facts pleaded by a plaintiff?

3. Whether a court can pick and choose one out of several methods of proof of interest in land pleaded and established by the plaintiff?

4. Whether the approach of the learned trial Judge in the lower court, and the judgment thereof, were correct, given the circumstances of this case?

The respondents in their brief formulated three issues for determination in the following manner:
“(a) Whether on the pleadings, evidence and circumstances of this case the lower court was justified in its findings and conclusion that the appellants did not show clearly the area of land to which their claim relates.

(b) Whether on the pleadings, evidence and circumstances of this case, the lower court was justified in its conclusion that the failure by the appellants to call witnesses from Olugbobiri community their boundary neighbours amounts to a weakness in their case and therefore a violation of section 149(d) of the Evidence Act.