Dr. A. A. Nwafor Orizu V. Francis E.A. Anyaegbunam (1978)

LawGlobal-Hub Lead Judgment Report

IDIGBE, J.S.C.

In the High Court of the Onitsha Judicial Division in the former East Central State (now Anambra State), the plaintiff (the respondent herein) claimed from the defendant (the appellant herein):-

“(a) a declaration of title to the piece or parcel of land known as and called Okpukpuite measuring about 334 feet situate in Ndiakwu, Otollo, Nnewi, in Onitsha Division, in Onitsha Province, in the Federation of Nigeria;

(b) 500 pounds damages for trespass to the said land by the Defendant, his servants and agents, and their destruction of economic tress and crops on the said land, including uprooting and/or cutting down of kolanut trees, iroko trees, palm trees, Ukaka trees, breadfruit trees, peak, mango and orange trees, cassava plants, and the pulling down of the walls of an old house belonging to the Plaintiff’s vendor, Nwaudorie Amaechighi;

(c) perpetual injunction to restrain the defendant, his servants and/or agents from further trespassing or committing acts of waste or wanton destruction of the said land or of interfering in any way with the Plaintiff’s user, ownership and possession of the said land.”

The land in dispute is edged yellow in the two plans, Exhibits A and L put in evidence by the plaintiff and defendant respectively. The identity of the land in dispute was in fact not contested.

The case of the plaintiff was that, in 1951, he bought a piece of land, of which the land in dispute is part, from one Nwaudorie Amaechighi, who at the time of the sale, lived on the land. Plaintiff stated that the sale to him by Nwaudorie Amaechighi was witnessed by five persons including a representative of the Nwosu family, one Irunwaze Nwosu; the land in the occupation of Nwaudorie Amaechighi originally belonged to the Nwosu family. Chief Ezedumegwu Nwosu had a vast expanse of land and Nwaudorie Amaechighi was his faithful servant. Chief Ezedumegwu Nwosu granted Nwaudorie Amaechighi a portion of the land in appreciation of the latter’s services and the plaintiff’s claim was that the land in dispute, that is, the portion edged yellow in the two exhibits aforesaid, was the area granted by Ezedumegwu Nwosu to Nwaudorie Amaechighi and which Nwaudorie Amaechighi later sold to him. The plaintiff relied for his proof of title on a Deed of Conveyance dated 9th August, 1961, tendered as Exhibit B and to which was attached an agreement dated 23rd April, 1951, and a survey plan, tendered as Exhibits B1 and B2 respectively.

The defendant did not dispute that Ezedumegwu Nwosu made a grant to Nwaudorie Amaechighi but his case was that the land in dispute did not form part of that grant. While denying that he destroyed the food crops and economic plants of the plaintiff, the defendant however, admitted going on the land in dispute, uprooting trees (though these were not stated to be economic trees) and constructing roads and a football field on the land. His defence was that he did all these in the exercise of his right of ownership of the said land in dispute. According to the defendant, Chief Henry Nwosu, who was the successor to Chief Ezedumegwu Nwosu, made a voluntary grant of a piece of land, of which the land in dispute is part, to him in 1949, two years before the plaintiff bought the land in dispute from Nwaudorie Amaechighi. The defendant further said that he got the grant for the purpose of building a school. However, the defendant admitted that he neither took measurements nor surveyed the land granted to him by Chief Henry Nwosu either at the time of the grant or subsequently.

After a consideration of the evidence before him, the learned trial Judge held, and we agree with him, that the question as to who owns the portion of the land in dispute, that is, the area verged yellow, on the two plans Exhibit A and L in these proceedings “would ultimately turn on the ascertainment of the land granted by Chief Ezedumegwu Nwosu to Nwaudorie.” The learned Judge regarded this as a primary question, especially as the grant which was made by Nwosu to Nwaudorie was prior in time to the grant made by the Nwosu Family to the defendant. The judge said:-

“If the grant made to Nwaudorie included the portion in contest and the sale to the Plaintiff was valid, then the principle that a grantor cannot derogate from his grant would apply….It is a settled rule that the acts of a predecessor in title bind all who claim by and through him. So, if the Plaintiff can establish, not just what he bought, but more than that, that what he bought was what was granted to Nwaudorie, then the answer to Chief Henry Nwosu’s grant to the Defendant, even if the Defendant can show the grant, is nemo dat quod non habet.”

The learned trial Judge accepted the evidence of Benedict Nwosu, who was called as the second defence witness, and who said that no one in the family knew the vast expanse of the Nwosu family land apart from Nwaudorie who had that knowledge by virtue of the fact that he lived on the land as caretaker to the family land. The judge held, accepting the evidence of Benedict Nwosu, that as a resident caretaker of the land, Nwaudorie ought to know the land well and that he, Nwaudorie, would know its extent, its boundaries, and its natural features.

The learned Judge then examined the evidence in regard to the grant that was made to the defendant by Chief Henry Nwosu. He accepted that there was a customary grant to the defendant by Chief Nwosu; he believed that Nwaudorie led one Olobunandu – during a visit to the locus in quo following an attempted extra – judicial settlement – to show the defendant the land Chief Henry Nwosu granted to him. He found, however, that the land in dispute was not the land that was shown to the defendant for two reasons, firstly, that Nwaudorie would not have shown (or allowed Olobunandu – whom the defendant claimed to be the person who identified to him, at the time, the area of land granted to him by Chief Nwosu – to show) the defendant an area of land which would include his (that is Nwaudorie’s) own habitation; and secondly, that he accepted the evidence of Chief Benedict Nwosu to the effect that the land which Nwaudorie showed to the defendant excluded the part that was occupied by Nwaudorie.

Having made these findings of fact, the learned Judge then examined the issue of the admissibility of the Deed of Conveyance, and other documents, which, as we have earlier stated, the plaintiff relied upon to prove his title to the land. The documents involved in this exercise are Exhibits B, B1 and B2. When in the course of his evidence, the documents were tendered by the plaintiff, the defendant objected to their admissibility. The learned trial Judge ruled against the objection and said as follows:-

“As regards the first objection that the documents said to be tendered combine two agreements, namely, agreement made in 1931 and another agreement made in 1961, I do not see any substantial legal objection since the law regards them as one document. On the second objection that the document sought to be tendered is not pleaded, perhaps all that can be said to this objection is not that the document is not specifically pleaded, see paragraph 3 of the claim, but that the document was not fully pleaded. There is no rule of law that stipulates that lack of full pleadings would disentitle a party from putting in evidence a document he has referred to in Statement of Claim.”