Joseph Ekwere & Ors Vs Nakmakosi Iyiegbu & Ors (1972) LLJR-SC
Joseph Ekwere & Ors Vs Nakmakosi Iyiegbu & Ors (1972)
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FATAYI-WILLIAMS, JSC.
In suit No. 0/91/59 filed in the Onitsha High Court, the plaintiffs, now respondents, claimed against the first set of defendants, i.e., the people of Amaogbu family –
“(a) A declaration of title of ownership and recovery of possession of land comprising of Isiyi and Abokuku lands situate at Okpu, Owerre in Awka Division.
(b) £3,000 damages for trespass committed by the defendants upon the said piece of land.
(c) An injunction to restrain the defendants, their servants or agents from further entering or in any way interfering with plaintiffs’ ownership and possession of the said land.”
The second and third sets of defendants were later joined by order of court. Paragraphs 1 – 9 of the plaintiffs’ Amended Statement of Claim, dated 18th February, 1963, read-
1. The plaintiffs are the people of Okpu family of Owerre village in Awka Division and bring this action for themselves and as representing the people of Okpu family of Owerre village. The said Okpu family is one of the eight families of Owerre village, the other seven being Iyiafor, Lete, Okpoghota, Ogwuada, Isiafor, Nkputu and Ihe.
2. The defendants are the people of Amaogbu, Obagu and Amakpoke families of Umuaka village in Okigwi Division and are sued for themselves and as representing the said people of Amaogbu Obagu and Amakpoke families of Umuaku village.
3. The land in dispute in this action comprises of two pieces of land namely Isiyi land an Abokuku land. The said area of land is situate at Owerre village and is shown verged pink on the plan filed in Court by the plaintiffs.
3a. The said land in dispute is surrounded on four of its roughly five sides by lands belonging to the three villages of Owerre via Iyiafor, Okpu (that is plaintiffs’ family) and Lete with the land of the defendants’ people having boundary only with it on its eastern side and which boundary is the Divisional and Provincial boundary separating Awka and Okigwi Divisions and Onitsha and Owerri Provinces respectively with defendants peoples’ land in Okigwi Division Owerri Province and plaintiffs’ people land (to wit: Owerre village lands) in Awka Division Onitsha Province.
4. The said area of land belongs to the plaintiffs from time immemorial, and as owners, the plaintiffs have farmed the land, reaped economic trees thereon and did all manner of acts of ownership over the said land from time immemorial without let or hinderance from anyone whatsoever.
5. In 1957 the defendants whose village adjoins the land in dispute crossed the boundary and entered the land in dispute claiming the same to be theirs and destroyed plaintiffs’ raffia palms growing on the land.
6. The plaintiffs promptly sued the defendants in the Orumba Native Court which has jurisdiction to hear the case, as the land in dispute is situate in Awka Division, claiming, among other things, a declaration of title to the land in dispute. Judgment was entered for plaintiffs for title and damages for trespass.
7. The said decision was on appeal confirmed by the District Officer and by the Resident. The said suit was Orumba Native Court Suit No., 136/57 and findings of fact in that suit will be founded upon.
8. In spite of this decision the defendants on or about September, 1959, invaded the land in dispute in large numbers and started to make cassava farms therein. They also tapped plaintiffs’ raffia palms in discriminately. The defendants continue these various acts of trespass to the time of filing of this action and thereafter to this day. 9. The said suit No. 136/57 was on the 10th November, 1959, nullified on purely technical grounds by the Governor in his consent order dated 10th November, 1959…..”
In their respective statements of defence, the three sets of defendants averred that the land in dispute is part of the eastern portion of their own land. They denied the boundaries averred by the plaintiffs in paragraph 3a of their statement of claim. They also denied that the land in dispute is the property of the plaintiff and averred that they own the land and have been in possession of it from time immemorial and have exercised maximum acts of ownership and possession over it. In the exercise of these rights, they said they cultivated yams and cassava on the land fetched water from the stream therein, tapped the raffia trees, Ute plants and palm trees in the land. Their permission, the defendants further averred, was always sought and tribute paid by the plaintiffs and others before entering the land. In answer to the averments in paragraphs 6 and 7 of the statement of claim, the defendants denied that the land in dispute was in Awka Division; they also denied that the Orumba Native Court had jurisdiction to hear and determine the matter; and although the 1st set of defendants admitted that they were sued by the plaintiffs in the Orumba Native Court in Suit No. 136/57, they averred that the decision of that court was, on appeal, “nullified” by the Governor in his judgment of 10th November, 1959.
Earlier in his testimony before the court on 28th August, 1962, when the plea of res judicata raised as a preliminary issue by the plaintiffs against the 1st set of defendants (the Amaogbu people) was being considered. Okafor Mba (2nd Pl.) produced the judgment of the Deputy Governor in suit No. 136/57 in which the Deputy Governor set aside the judgment of the Orumba Native Court and ordered that the matter be heard de novo in the High Court. Part of that judgment (Ex. “B”) reads:- “It is the appellants’ prayer either that their appeal be allowed on merit or that the case be sent to the High Court for retrial. It is, in fact, unnecessary for me to consider the third ground of appeal, because an assessment of the merits of the case is estopped by the very serious procedural imperfections to which the appellants have rightly drawn attention. Litigation should not have being allowed to be in either native court without appropriate action being taken in terms of the proviso to Section 8 (1) of the Native Courts Ordinance. Accordingly I declare the proceedings in the Orumba Native Court and all subsequent proceedings arising therefrom to be a nullity. It follows, as a corollary – and this is accepted by the appellants – that the action taken, and won, by them in the Mba-Abua Native Court (Civil Suit No. 240/57) is also a nullity. I so order.” (The under-lining is ours). This judgment still subsists and we shall refer to its effect on the present action later. Suffice it to say at this stage that the learned trial Judge, quite rightly, ruled that since the judgment of the Orumba Native Court and subsequent decisions on appeal against it had been declared a nullity, the plea of res judicata was not well founded. In his testimony in support of the plaintiffs’ claim, Okafor Mba (2nd Pl.) described the boundaries of the land in dispute as follows:-
“The land in dispute is in Awka Division. The people in Awka Division make roads as far as to the eastern boundary of the land in dispute and people in Okigwi Division also make roads up to that boundary. We have boundary with Lete on the right side when coming from our village to the land in dispute. We also have boundary with the Umuaku people. On our own boundary with Iyi-Afo we have Isi-iyi stream and also a footpath through which Umuhu people used to go to Iyiafo land to farm. The Imo Ohia stream is on our boundary with Lete. Our boundary with Lete ends at a tall palm tree. These are the landmarks on our boundary with Umuaku- the tall palm tree, Ogilisi tree, another Abosi tree, Okpokoro tree; we then come to a cluster of three Abosi trees near a footpath. It is here that we and the defendants meet and make a sacrifice of lamb to the juju of the land before we apportion farmlands to the defendants. We then come to Echichi tree which is also on our boundary with Iyi-Afo.”
Under cross-examination, the 2nd Pl. following his earlier admission that his people and the defendants people used to meet at the foot of the three Abosi trees to make “sacrifice of lamb” before they apportioned farmlands to defendants, further admitted that the defendants used to farm on their land (that is, the plaintiffs’ land) with their permission. He also admitted that it was the first set of defendants (the Amaogbu people) who farmed on the land in 1956 and refused to pay tribute and that it was because of this refusal that they had brought the present action. He finally admitted that the other two sets of defendants (that is, the people of Obagu and those of Amakpoke) did not come to farm on their land that year. To further questions, he still contended that the land in dispute is in Awka Division but admitted that he had never seen the plan of the Division. Other witnesses called by the plaintiffs are Timothy Madu (5th P1/W) a native of Iyi-afo who testified that the land of his family is contiguous with the land in dispute; Onwuka Ege (6th PI/W) a native of Lete who also testified that his people have a common boundary with the plaintiffs. When questioned more about the boundary of the land in dispute, Ege replied as follows:-
“I know Egbu tree on the boundary of the land in dispute. Umuakwu people farm near the Egbu tree outside the land in dispute. Amakoke, Amaogbu, Obagu people farm there.”
Another witness who gave evidence for the plaintiffs is Onyeagu Onwu (3rd Pl) who stated that they were claiming £3,000 damages for trespass and also for an order against the defendants to leave the land. For the defendants, one Isiba Enwere (2nd D/W) testified as to the boundary of the land in dispute as follows:-
“I know the land in dispute. Our own portion is called Ala-ocha and Isi-iyi. This portion belongs to Amaogbu. It has been our land from time immemorial. We never paid any tribute to anybody to go there and we never took permission from anybody. The land on the north east of the land in dispute is owned by Umuhu and so also the land in the north of the land in dispute. We have boundary with Obagu in the south and with the plaintiffs in the west. Our boundary with Umuhu is a footpath where Umuhu people used to go to their farms. In the North there are Inyima and Agba trees on our boundary with them.”
Under cross-examination, this witness said that the plaintiffs’ had no land in Okigwi Division and that their land was within Awka Division. He further testified that he was in court during the hearing of the appeal to the District Officer in the Orumba District Court case when the District Officer said that the land in dispute was within the administrative boundary of Awka Division but said his people refused to accept that decision. Another witness called by the defendants is Akabuike Madu (the 6th Defendant). He testified on behalf of the people of Amakpoke Umuaku (the 3rd set of defendants). He testified as to the boundaries of the land in dispute as follows:-
“I know the plaintiffs and the land in dispute. We call our own portion ‘Alagi’…our land is bounded on the north by the land of Obagu. We have boundary with Lete Owerre at Imo Ohia Stream. We have boundary with plaintiffs at Okpukpe Mbe. … On our boundary with Obagu we have the following trees: Abachara, two Okilisi trees, enyima, another enyima, abosi, akpokoro and agba trees. Agba tree is on our boundary with the plaintiffs….. Our people plant yams and cassava on the land. We have been farming on the land from time immemorial. We do not pay the plaintiffs any tribute to farm on the land nor do we get permission from them to do so. Ikpo Afuru is no boundary between us and the plaintiffs…The Egbu tree is not on our boundary with the plaintiffs. It is on our land.”
For the Obagu people (that is, the 2nd set of defendants) one Otutu Azu (6th D/W) testified as to the boundaries of their own portion as follows:-
“I know the plaintiffs and the land in dispute. Our own portion of the land is called Odo Ubaba…we plant yams and cassava on the land. We also plant pepper and other vegetables. Our land is bounded on the north by the Amaogbu land and on the south by the Amakpoke. We have boundary with the plaintiffs at Akpaka tree and Agba tree. I agree with D.W.2 about the boundary trees between our land and theirs and I also agree with D.W.5 about the boundary trees between their land and our land except that he did not mention one Abosi tree on the boundary.”
In his judgment, the learned trial Judge, due no doubt to its complicated nature, dealt with the evidence as to the boundaries of the land claimed by the plaintiffs at great length and then found as follows:-
“From the above findings it is clear that the Owerre Ezukala people own all the lands lying north, north east, west and south of the land in dispute and that Umuaku land covers the remaining portion. Here again I have to say that I am satisfied from the evidence before me that the boundary of the plaintiffs with the defendants is in accordance with the evidence given by the plaintiffs and that the defendants were not speaking the truth.”
(The underlining is ours). The learned trial Judge then dealt with the provincial boundary. This boundary is most crucial having regard to the decision of the Deputy Governor in Suit No. 136/57 to which we had referred earlier. In considering this boundary, the learned trial Judge observed as follows:-
I now come to the provincial boundary. The second defence witness in his evidence in the proceedings Ex. “E” said that because the Native Administration labourers from Awka Division and Okigwi Division stop maintaining the road at Egbu tree therefore the plaintiffs contended that that was their boundary but in his evidence before me, he said that he does not know where they stopped and despite the fact that he agreed that the D.O. said that the land in dispute lies in Awka Division, he said that he did not agree with him. In their judgment, the Native Court Judges in Ex. A put in evidence by the defendants impliedly agreed that the divisional boundary was at Egbu tree. The plaintiff in his evidence said that when the D.O. from Awka and the one from Okigwi went to inspect the land in dispute, both of them agreed that the Egbu tree was their divisional boundary. I am inclined to agree with the plaintiffs that the divisional boundary is at the Egbu tree and not at Okpukpu Mbe although this is no conclusive proof as to the ownership of the land in dispute but it supports the contention that the case about the land in dispute should be in Awka Division and not in Okigwi Division and that therefore the Native Court of Mba Abua had no jurisdiction to deal with the matter in Ex “A”. It also goes to show that the plaintiffs are speaking the truth with regard to the divisional boundary and that the defendants are not.” On the issue of user, the learned trial Judge found as follows:-
“There is no doubt that the defendants do farm on the land in dispute but this is no conclusive proof that the land is theirs. It may be true that their women ferment their cassava near the Isi-iyi stream and that the defendants also drink the water from Isi-iyi stream, but all these do not make the land conclusively their own property. I have to say that from the evidence before me I am inclined to believe that the defendants use the land in dispute but with the permission of the plaintiffs.”
He thereupon gave judgment for the plaintiffs as follows:
“There will be judgment for the plaintiffs for a declaration of title to the land called Isi-Iyi and Abokuku against all the defendants. With regard to the question of damages for trespass, since the defendant have denied the title of the plaintiffs, they made their entry a trespass ab initio but there is nothing before me to show how great the damages suffered by the plaintiffs are. I therefore give the plaintiffs nominal damages of £10 against all the defendants. With regard to the claim for injunction I think that the plaintiffs should succeed with regard to such acts as farming and tapping raffia palms for palm wine and the defendants are hereby restrained from farming on the land in dispute or tapping wine without the permission of the plaintiffs. This however does not restrain the defendants from going to Isi-Iyi stream or Imo Ohia Stream to fetch drinking water or to ferment cassava.”
It is against this judgment that the defendants have now appealed to this court. Learned counsel for the defendants/appellants submitted that in so far as the claims for trespass and injunction were concerned, the plaintiffs/respondents should not have succeeded firstly, because no evidence was adduced in support of their complaint that the defendants entered the land in 1957 and again in 1959, and secondly, because the evidence the plaintiffs/respondents themselves had adduced indicated that the defendants/appellants farmed on the land with their permission. As for the claim for declaration of title, learned counsel submitted that the pleadings of the plaintiffs/respondents as well as the evidence in support showed that the eastern boundary of the land in dispute was most crucial to their claim. He then referred to the judgment of the Deputy Governor (Ex. “B”) which set aside the decision of the Orumba Native Court in Suit No. 136/57 and that of the Mba Abua Native Court in Suit No. 240/57 in respect of the same land now in dispute on the ground that none of the two native courts was competent to hear the case. He also referred to para. 3a of the plaintiffs respondents statement of claim where they averred that they have a common boundary with the defendants/appellants on the eastern side of the land in dispute, that this boundary separated Awka and Okigwi Divisions, and Onitsha and Owerri Provinces respectively, and that their land is in Awka Division while the defendants/appellants’ land is in Okigwi Division. Learned counsel then submitted that since this averment and the evidence in support are at variance with the finding of the Deputy Governor, it was most important for the plaintiffs/respondents to prove their eastern boundary and that since this had not been done their claim should have been dismissed. For the plaintiffs/respondents, it was conceded that the main cause of the dispute between the parties was the eastern boundary of the plaintiffs/respondents’ land. Learned counsel submitted, however, that there was sufficient evidence of this and referred to the evidence that the eastern boundary was at the Egbu tree. Learned counsel further submitted in the alternative that the eastern boundary was not relevant to the plaintiff/respondents claim but that if he was wrong in his submission the plaintiffs/respondents should have be non-suited. The real questions for determination in this appeal are twofold, namely whether having admitted that the defendants/appellants used to farm on the land in dispute with their permission, the plaintiffs/respondents could maintain claims for trespass and injunction, and whether they had failed to prove the eastern boundary of their land and if so, what effect this failure should have on their claim.
It is trite law that in order to succeed in a claim for trespass a plaintiff must prove that he is in actual possession of the land in dispute. (See Oluwi v. Eniola (1967) NMLR p. 339 at 340; Banjo v.Fasanya SC. 315/1967 delivered on 3/7/70; and Lawal v. Adeola SC. 187/1967 delivered 25/9/70). Therefore, if a plaintiff is not in possession then he cannot succeed in a claim for trespass (See Sanni v. Oki SC.199/1968 delivered on 26/3/71). This is because the person who brings on action for trespass is one whose possession has been disturbed (see Aremu v. Akanji SC. 86/1970 delivered on 29/10/70). In the instant case, the 2nd plaintiff admitted that the defendants/appellants (the Amaogbu people) who farmed the land in 1956 and refused to pay them tribute and that it was because of this refusal that they had brought the present action.
This admission, if proper evaluated, should have left the learned trial Judge in no doubt that the plaintiffs/respondents case was that the defendants/appellants were their customary tenants who had refused to pay the customary tribute. If this was the case, we do not see how they could be liable in trespass. As a matter of fact, the learned trial Judge himself found that the defendants/appellants used the land in dispute but with the permission of the plaintiffs/respondents. Learned counsel for the defendants/appellants correctly stated the position when he observed that the proper claim in such circumstances should have been one for forfeiture. For these reasons, we think the learned trial Judge was in error in granting the claim for trespass and injunction.
With respect to the claim for declaration of title, it cannot be disputed that the eastern boundary where their land touched the defendants/appellants’ land is most crucial to the plaintiffs/respondents’ claims. In this connection we recall that the plaintiffs/respondents averred in their pleadings that their lands are in Awka division in Onitsha Province while the defendants/appellants’ lands are in Okigwi Division in Owerri Province. In their survey plan (Ex. “C”) they marked the eastern boundary by two Echiachi trees, one Okpokoro tree, three Abosi trees, one Egbu tree and one Ogilisi tree.
The evidence adduced in support was that the Egbu tree is the boundary. The Divisional or Provincial boundary was not adverted to either in their survey plan or in evidence notwithstanding the fact that the Deputy Governor in his judgment (Ex. “B”) by his reference to the need for taking appropriate action under Section 8 (1) of the Native Courts Ordinance (Cap. 142 of the Laws of Nigeria, 1948) had clearly indicated that the land in dispute cut across the Divisional boundary. The Section in question provides, inter alia that-
“Where a native court has jurisdiction in causes or matters concerning land, and land the subject matter of any proceedings is situated partly within the area of the jurisdiction of two or more native courts, the Resident, if all such courts are within the area under the jurisdiction of one Resident, or the Chief Commissioner if all such courts are not within the area under the jurisdiction of one Resident, shall determine in which court the cause or action shall be heard and thereupon such court shall have the same jurisdiction over the land in question as it has over land lying wholly within its jurisdiction and may take such course with regard to the cause or matter which it considers justice requires.”
It should be noted that the Orumba Native Court where the proceedings in suit No. 136/57 (Ex. “E”) started before it went on appeal first to the District Officer, Orumba, then to the Administrative Officer, Onitsha, with Resident’s Judicial Powers and finally to the Deputy Governor who set all the proceedings aside in Ex. “B” was at the material time situated in Awka Division of Onitsha Province (see Laws of Eastern Region of Nigeria, 1954 page B 651). The Mba -Abua Native Court whose proceedings in Suit No. 240/57 were also set aside was at the time situated in Okigwi Division of Owerri Province (see also the same Laws of Eastern Nigeria P. B654). Furthermore, the description of the western boundary of Awka Division in the Fifth Schedule to the Onitsha Province Divisional Boundaries Order in Council (P.N. No. 76 of 1951 at p. 535 Laws of Nigeria, 1951) and that of the eastern boundary of Okigwi Division in the Third Schedule to the Owerri Province Divisional Boundaries Order in Council (see P.N. No. 75 of 1951 at p. 530 of the same Laws), show clearly that at some point Onitsha and Owerri Province, have a common boundary. Therefore, if the plaintiffs/appellants’ contention is that the land in dispute is wholly in Awka Division of Onitsha Province and the Deputy Governor in his judgment in respect of the same land found, as it were, that neither the Orumba Native Court situated in the same Awka Division for the Mba Abua Native Court situated in Okigwi Division was competent to hear the case, it seems to us that the positioning of the land in dispute – whether it is wholly within Awka Division or wholly within Okigwi Division, or partly within Awka Division and partly within Okigwi Division is very crucial to the plaintiffs’ claim.
The learned trial Judge seemed to have overlooked the fact that the Deputy Governor in his judgment (Ex. “B”) found that neither the Orumba Native Court in Awka Division nor the Mba -Abua Native Court in Okigwi Division was competent to hear the case and referred to Section 8 (1) of the Native Courts Ordinance as authority for his decision. He thus found, albeit by implication, that the land in dispute is partly within Awka Division and partly within Okigwi Division. This judgment, it must be remembered, still subsists. If the divisional boundary of Awka and Okigwi Divisions had been shown on the eastern boundary of the plaintiffs/respondents survey plan (Ex. “C”), the area of the land in dispute would have been more easily recognised. As this was not done and as no other evidence was adduced to show the position of the land in relation to this divisional boundary, the eastern boundary of the land in dispute could not be ascertained.
The learned trial Judge was therefore in error in granting the plaintiffs/respondents declaration of title to the land. It is also pertinent to point that this failure to ascertain the area in dispute would have affected the claim for trespass and injunction as well. Learned counsel for the defendants/appellants has asked us to dismiss the claim for declaration of title if we found that the plaintiffs/respondents have not proved their eastern boundary. Learned counsel for the plaintiffs/respondents, on the other hand, has asked us to non-suit them.
It must be admitted that the plaintiffs/respondents in their survey plan (Ex. “C”) did indicate what they consider to be their eastern boundary. Along this boundary are some trees including the “Egbu Tree” about which so much was heard in the evidence given in support of the claims. What the plaintiffs/respondents had failed to do was to relate this boundary and the Egbu Tree to the divisional boundary of Awka and Okigwi Divisions or the provincial boundary of Onitsha and Owerri Provinces. For this reason we have come to the conclusion, having regard to the particular circumstances, that it is in the interest of justice that the plaintiffs/respondents should be non-suited.
Be that as it may, the appeal is allowed and the judgment of the Onitsha High Court, including the order as to costs, in Suit No. 0/91/59 delivered on 8th April, 1963, is hereby set aside.
We accordingly order- (a) that the plaintiffs/respondents be and are hereby non-suited in all their claims; (b) that costs in favour of the defendants/appellants in the court below be assessed at 75 guineas; and (c) that this shall be the judgment of the court. The defendants/appellants are also awarded the costs of this appeal assessed at 147 guineas.
Other Citation: (1972) LCN/1417(SC)