Michael Ogo Ibeziako V. Nwagbogu & Anor (1972) LLJR-SC

Michael Ogo Ibeziako V. Nwagbogu & Anor (1972)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

The proceedings herein originated in the Onitsha Native Court as Suit No. 649/55 in which the present respondents, as plaintiffs, had sued the present appellant as defendant for:-

“1. Declaration of title to the piece or parcel of land known as and called Iyiukwu situate in Onitsha Township and bounded on the North by Ogboza land occupied by Q.R.C., on the East by Ogboli land, on the West by Oguta Road and on the South by land of Otimili of Obikporo. Plan of land to be filed in court. Value of land 400pounds.

2. 150pounds damages for trespass to the said land.
3. Recovery of possession of the said land.
4. Injunction to restrain the defendant and or his agents or servants from entering on the said land and building thereon or interfering in any way with the plaintiffs’ possession and ownership dispute arose since 3 months.”

On the 7th November, 1955, and by virtue of powers conferred on him in that behalf by section 28(1) of the Native Courts Ordinance, the Senior District Officer, Onitsha Division, transferred the case for hearing to the then Supreme Court of Nigeria, Onitsha Judicial Division. In the Supreme Court the case was No. 0/79/55 and was there heard by Hughes J. (High Court, Onitsha) who delivered judgment therein on the 18th November, 1958 and dismissed with costs the case of the plaintiffs. In the course of his judgment, Hughes J., after reviewing the evidence concerning the plans which were produced in evidence, stated, inter alia, as follows:-

“Had it been the case that the boundaries of the land in dispute had been proved to a degree of certainty where a declaration of title would neither give to the plaintiffs a relatively appreciable extra amount of land to which they might not be entitled nor take from the adjoining landowners a similar area of land which might in fact belong to such landowners, I would have passed on to consider whether or not the plaintiffs have proved ownership. As it is, the evidence is such that I find myself unable to hold that the plaintiffs have proved with sufficient precision what are the boundaries of the land to which they lay claim and accordingly this case must be dismissed but I wish to make it clear that my finding should not be understood as in any way indicating that the defendant is entitled to a declaration of title.”

The learned trial Judge (Hughes J.) did not therefore decide the case on any of the other points raised and in respect of which there was a considerable body of evidence before him. Earlier on in the course of the same judgment, he had observed as follows:-

“Of the many differences which exist in the boundaries of the land in dispute as shown on the several plans not the least significant is that on exhibit A the southern boundary of the land in dispute extends some seventy yards further eastwards than the corresponding boundary shown on exhibit L, this is of importance when it is remembered that both these plans were prepared on the instructions

of the plaintiffs’ people.”

The plaintiffs appealed against that judgment to the Federal Supreme Court and their appeal succeeded and was allowed. In the course of the judgment of the Federal Supreme Court, delivered by Sir Lionel Brett F.J., he observed as follows:-

“In his judgment Hughes J. made only brief reference to the oral evidence and did not survey it as a whole. He rested his decision on the inconsistency between two plans showing the land in dispute, each of which was said to have been prepared on the instructions of the plaintiffs, and on the failure of the plaintiffs to explain the inconsistency. ”

The Federal Supreme Court then traced the history of the plan produced by the defendant to contradict the plaintiffs’ evidence of their boundaries and referred to the plan as having been produced in evidence before Hughes J. as exhibit L. The Federal Supreme Court then observed as follows:-

“Where I respectfully disagree with Hughes J. is in the importance which he attached to exhibit L. At most it tended to affect the weight of the evidence called in support of the boundaries shown in exhibit A and, as I have already said, he did not consider that evidence in detail. The value of exhibit L itself is lessened by the lateness of its production. Furthermore, while it is a commonplace that a plaintiff seeking a declaration of title must succeed on the strength of his own case, there are occasions when the weakness of the defence tends to strengthen the plaintiff’s case and this may be well such an occasion.” The Federal Supreme Court as stated above, allowed the appeal of the plaintiffs, set aside the judgment of Hughes J. and ordered that the case be re-heard, de novo, by another judge, the parties being at liberty to amend their pleadings. This was on the 3rd March, 1960.

Pursuant to the order of the Federal Supreme Court and leave obtained in accordance with Rules of Court the plaintiffs on the 4th September, 1961, filed an amended statement of claim and on the 15th January, 1962, the defendant also filed an amended statement of defence. The re-hearing took place before Kaine J. (High Court, Onitsha) and was started on the 27th February, 1963. Both parties gave evidence and called witnesses. The plaintiffs are the Umoujidoko family of Ogbodogwu Village in Onitsha: they will hereafter in this judgment be referred to as such. The defendant belongs to the Umuesina family of Amese Village in Onitsha. When the hearing of the case started, the people of Amese Village by their representatives sought and were granted leave to be joined as co-defendants in order to resist the claims of the plaintiffs. That was in the trial before Hughes J. They filed a statement of defence and a plan and their plan was produced in evidence at the trial before Kaine J. as exhibit G. We stated earlier on that both parties gave evidence at the trial and produced plans. For the plaintiffs the plan of the land in dispute No. MEC/109/59 was produced and admitted as exhibit A. It was given in evidence that the Umuojidoka family have always been in possession of the lands in that around 1955, when the plan exhibit A was being made, there were some scattered buildings belonging to the defendant’s people of Amese on the land but that these buildings were all then under construction. It was also given in evidence for the plaintiffs by their surveyor, Chukwura, that in 1958 and for the purpose of another case which the plaintiffs then had against the Obosi people, he had prepared another plan of all the plaintiffs’ land, that this plan was No. MEC/56/60 and the plan was produced in evidence in these proceedings as exhibit B. The surveyor also produced, and this was admitted in evidence as exhibit C, yet another plan (MEC/66/55) of the land which he had made for the plaintiffs in 1955: indeed, the surveyor, Chukwura, also made other plans of the land in dispute either for the defendant or with his approval or for his people of Amese. These plans were produced and admitted in evidence as exhibit D (No. MEC/200/56), exhibit E (No. MEC/38/62), exhibit F (No. MEC/178/61), exhibit G (No. MEC/7/58) and exhibit K (No. MEC/279/57). We pointed out before that a plan specifically made for the plaintiffs and covering their lands but in respect of another case was produced and admitted in evidence before Hughes J. as exhibit L. That plan could not be found at the trial before Kaine J. and so a copy of it was by consent of the parties produced in evidence in this case and admitted as exhibit H. At the instance of the defendant, the surveyor, Chukwura, made and produced in evidence a composite plan featuring the contents of all the various plans. The composite plan was admitted in evidence as exhibit J. Concerning exhibit J and its relation to the other plans of the plaintiffs, the surveyor, Chukwura, testifying for the plaintiffs, stated:-

“I made exhibit J on the instruction of the defendant. Exhibits C and H do not correspond on the eastern side. Also exhibits C and G do not agree on the eastern boundary of exhibit C. Exhibits C and H differ slightly on the northern boundary. In 1956 the houses on the land in dispute were completed. I mean the storeyed building and the out houses. In 1959 when I made the plan exhibit A, the plaintiffs did not show me any farms on the land in dispute either belonging to you or to them.”

There was evidence given on behalf of the plaintiffs of the collection of rents from their tenants by some of those tenants who knew and called the land in dispute Iyiukwu land; there was also the evidence of the boundarymen of the Umuojidoko people on their northern side. It was further given in evidence that the people of the defendant’s family applied to be joined in the action and that soon after their joinder they withdrew from the case. A copy of their application to withdraw from the case and the consequent order made by the court was produced in evidence as exhibit N. The second plaintiff also testified that at the previous hearing one S. K. Obi from the defendant’s family of Umuonyesuna gave evidence for the plaintiffs, that Obi had died before the hearing by Kaine J. and indeed produced a transcript of his evidence at the first hearing in evidence as exhibit O. He also produced the transcript of the evidence of one John Odiari of Umuanese family and this was admitted in evidence as exhibit P. It is without doubt the plaintiffs’ case that Umuojidoko land called Iyiukwu lay on both sides of the Oguta Road. The second plaintiff also produced in evidence a copy of the judgment of Hughes J. on the previous hearing of the case (exhibit T) and a copy of the judgment of the Federal Supreme Court on appeal against that judgment (exhibit X).

We did say earlier on in this judgment that the defendant did as well call evidence in support of his pleadings. The surveyor, Chukwura, as well gave evidence for the defendant. The Registrar of the High Court, Onitsha, produced in evidence, as exhibit Z and exhibit Z1 respectively, the transcript of the evidence of one Francis Ogbogu and one Robert Anyaegbunam Erokwu who had given evidence at the previous trial but had since died. The defendant, Michael Ogo Ibeziako, gave evidence to the effect that the land in dispute is called Iyiukwu, that he first became the absolute owner of the land as from 1922 and that he erected a building on part of the land in the same year, followed in course of time by other buildings which he had since erected on the land. He also testified that the Agricultural Department planted palm trees on the land at his request, that from time to time in pursuance of his right of ownership he had granted possessory rights to strangers and had warned off trespassers on the land, farmed and/or let out portions of the land to farming tenants and that except for members of his own family, who had tried to challenge his rights on the land, he had always enjoyed peaceful possession of the land. Concerning S. K. Obi who, as stated earlier, testified for the plaintiffs at the earlier hearing of the case, even though he was a member of the defendant’s family of Umuanese (see exhibit 0), the defendant testified as follows:-

“Late S. K. Obi was a member of my family. Before his death two of us had fallen out because he was claiming the family land known as Enuofufe which is situate across the Nkisi stream as his exclusive property. He sued myself and my brother to the High Court. It was a Native Court case transferred to the High Court. This is the summons-tendered no objection-admitted and marked exhibit n. My brother R. N. Ibeziako and Isidare Obi also took action against S. K. Obi and his brother in the Native Court.”

The defendant testified also to the effect that the whole of Iyiukwu land belonged to the Amese family and that the original owner of the land and founder of the family, by name Amese, had two children by name Okwobie and Anyezu. He then told the story of how it came to be that only his own branch of Amese family now owned Iyiukwu land. He stated thus:-

“Amese had two children namely Okwobie and Anyezu. The whole of Iyiukwu land belonged to Amese. From time immemorial the two children were using it in common. About 1900-1905 there was a

dispute between the present plaintiffs’ family and Amese about their boundary running from Ajanwammuo to two Agba trees which now corresponds with Oguta Road. The head of Amese family then was from Okwubie family. His name was Enweonwu Omodi Odogu. He refused to swear the oath brought by the plaintiffs’ family of Ojidoko and so Chude Adazi of Umonyezona swore the oath. Since then Onyezonu family took up the whole of Iyiukwu up to Oguta Road to the exclusion of Umuokwubie sub-family.”

Under cross-examination he admitted that the land now claimed by him and in dispute was about the entirety of the land ever owned by the Amese family and stated that it was given to him by his family when in 1922 he had asked his family for land on which to build a house. The defendant also called witnesses. They testified to the effect that he (the defendant) was the owner of Iyiukwu land to the left-hand side of the Oguta Road and that it was given to him by the Umuonyezona branch of the Amese family. They also gave evidence of the grant by the defendant of portion of the land for the use of the company known as Ibezi Limited and stated that the farmers to whom he had let out portions of the land were still on the portions granted to them and were never disturbed in their holdings.

In the course of a reserved judgment, Kaine J. extensively reviewed the rather complicated evidence given by the parties before him. With respect to the actual issues for resolution, the learned trial judge pointed out as follows:-

“It appears from the evidence before me that both the plaintiffs and the defendant’s family of Amese have land which is called Iyiukwu land and that the two families have their boundary somewhere. It appears that the defendant’s case is that the plaintiffs’ land does not extend beyond the Oguta Road to eastern side.”

The Learned trial Judge dealt with the episode of the appearance at and the disappearance from the scene of the first trial of the representatives of Amese. When they re-applied to withdraw from the case they had already filed a statement of defence and a plan. The Learned trial Judge observed with respect to this as follows:-

“When this case arose the defendant’s family of Amese applied to be joined as co-defendants. They were joined by an order of the court and they filed their statement of defence and plan. Their plan is marked exhibit G before me. When the case was ripe for hearing they withdrew from the case. There is no doubt that they saw the plaintiffs’ plan exhibit C before they withdrew and that according to the plaintiffs’ plan an issue was joined between them and the co-defendants as to what was the correct eastern boundary of the plaintiffs’ land but despite this, the co-defendants withdrew from the case and their action can be said to amount to acquiescence that the boundary which the plaintiffs showed on their plan exhibit C was the correct boundary between the plaintiffs’ Iyiukwu land and the codefendants’ Iyiukwu land. I understand that the co-defendants included the defendants’ sub-family of Umuonyezona. When they withdrew the defendant was left to fight his battle alone but that was not the end of it for some of them appeared to give evidence in the former trial at the instance of the plaintiffs.”

The learned trial judge then expressly disbelieved the defendant on the story of the surrender of the land to only the Umuonyezona branch of the family. He found that although the story was supported by the earlier testimony of Francis Ogbogu (exhibit Z) it was controverted by the evidence of S. K. Obi (exhibit 0) and that of John Odiari (exhibit P). The Learned trial Judge also disbelieved as inconceivable the story of the defendant that he was granted all the land he had claimed (including the land in dispute) by the Amese family as well as the story of the many buildings which he claimed to have erected on the land. The Learned trial Judge stated that he was perfectly satisfied about the boundaries of the land claimed by the plaintiffs as their own. There had been before him some argument about the plan exhibit H, the defence contending that as that plan shows a different eastern boundary to that extent the boundary of the land claimed by the plaintiffs was indefinite. With respect to this contention the Learned trial Judge observed:-

“It appears that the defendant has made much of the plan exhibit H1. It was a plan made in 1934 for the plaintiffs by surveyor John. The plan is headed ‘Plan of land in Suit Nwagbogwu Akwonwata v. Anigbogwu and Others.’ The defendant’s contention is that what appears to be the eastern boundary shown on that plan is not the eastern boundary of the land which the plaintiffs are now claiming and therefore the plaintiffs are not sure of their eastern boundary. I may say that I am inclined to agree with Mr. Ikpeazu that there is nothing to show the purpose for which the plan was made; that the suit number of the case was not inserted; that there is no evidence that the plan was used in any proceedings in any court of law; that it was neither used in exhibit Q nor in exhibit R. On the other hand I may go further to say that when the plan was made, the plaintiffs showed that their land extends to the eastern side of Oguta Road and includes a large portion of land now in dispute.”

The Learned trial Judge accepted and preferred the evidence of the Umuojidoko people concerning their possession and use of the land in dispute and disbelieved the defence on those matters. Eventually the learned trial judge gave judgment in favour of the plaintiffs in these terms:-

“I am therefore of opinion having considered the whole of the evidence before me that the plaintiffs have proved their case and are entitled to judgment.There will be judgment for the plaintiffs for a declaration of title to the land in dispute called IYIUKWU as delineated in their plan exhibit A with 350pounds damages for trespass. The plaintiffs shall have recovery of possession of the said land. I order that the defendant do give up the possession of the land together with all the buildings thereon on or before 31st August, 1964 unless within that period he agrees with the plaintiffs to occupy the buildings as their tenant or agrees with them for the purchase of the portion of the land where the buildings are situate. I also grant to the plaintiffs the injunction which they seek and I order that the defendant and his servants or agents be restrained from going on the said land without consent of the plaintiffs but this injunction shall not operate until the 31st August, 1964 when the defendant will have to give up possession of the said land. The plaintiffs shall have the costs of this suit which I assess at 80 guineas including disbursements.”

The defendant has now appealed against this judgment and a number of grounds of appeal were filed and argued on his behalf. It was argued for instance that the learned trial judge was wrong in law to have treated the withdrawal of the representatives of the Umuamese people from the qase as acquiescence in the case of the plaintiffs. We had earlier on in this judgment pointed out that during the previous hearing of the case before Hughes J. Akunne Ekwensi Chude and Akunne Edozie, purporting to represent the Umuamese family, applied on the 25th May, 1956 to join i,-the action apparently to vindicate the claims of the defendant to the ownership of the land in dispute. They were indeed so joined and were ordered to file their statement of defence. They did file such a statement of defence and plan. Later and on the 10th November, 1958 and before i the hearing actually commenced in the trial before Hughes J., they applied to withdraw from the proceedings. With respect to this point, Paragraphs 12 and 13 of the plaintiffs’ statement of claim aver as follows:-

“12. On the 25th May, 1956, Mr. Obanye acting as counsel for and on behalf of Umu-Amese family the defendant’s family, moved the court to join Akunne Ekwensi Chude and Akunne Edozie representative members of the said Umu-Amese family of Ogboli Olosi, as the second defendants in the present case, on the ground that the land in dispute is the property of the said family, and on the 12th July, 1956, the court made an order in terms of the motion.

13. On the 10th February, 1958, Mr. Obanye acting for UmuAmese family aforementioned applied to the court to discontinue or withdraw participation of the said Umu-Amese family (2nd defendants) in the matter on the ground that ‘the said family (2nd defendants) have no interest in the land in dispute, that is to say, the land verged brown on the plan filed by the plaintiffs’ and the application was granted.”

In answer to those paragraphs of the statement of claim, the defendant in his statement of defence averred that the two persons from Amese who had sought to be joined in the action were but members only of a rival faction in the family and that in any case the statement of defence filed by them fully asserted the claims of the Amese family to the land in dispute. Furthermore, paragraph 8 of the statement of defence in the present proceedings reads:-

“8. The defendant states further in answer to para. 13 of the statement of claim that Umu-Amese family was and is still divided into various factions due to internal disputes and that Mr. Obanye’s withdrawal from participating in the case had nothing to do with the overall interest of the entire Umu-Amese family. Chukwude Adazie of Umu-Onyezuna branch of Umu-Amese family swore the traditional oath to satisfy the plaintiffs’ Umuojidoko family that the western boundary between the Umu-Onyezuna and Umuojidoko lies along Oguta Road from Aja Nwa Muo to two Agba trees. From 1905 the whole of Iyiukwa land as shown and delineated on plan No. MEC 200/56 filed herein has been the exclusive property of the members of, Umu-Onyezuna family who have exercised maximum rights of ownership thereon by farming and giving portions thereof to tenants without any interference by the plaintiffs or anyone else.”

During the trial before Kaine J. evidence was of course led about this incident. The 6th plaintiffs’ witness, Anthony Akwunwafor Abadom, a member of the Umuojidoko family of Ogbodogwu, in the course of his testimony said thus:-

“I know Chude Ekwensi. He is alive. I know also Akwunne Edozie. He is dead. Chude Ekwensi is from the defendant’s family of UmuAmese so also was Akunne Edozie. When we brought this action both of them applied to be joined as representing the family and they were joined by an order of the court. They retained the services of Mr. Obanye. Just before the trial began at the former trial, Mr. Obanye applied to have the family withdrawn. They were withdrawn. This is a certified copy of the application and the order of the court. Tendered-No objection-admitted and marked exhibit N.”

In exhibit N, learned counsel representing the parties sought to be joined was recorded as having stated, when he applied to withdraw from

the case, thus:-

“OBANYE:-On receipt of the plan which has been filed by the 2nd defendant it has been realised that the 2nd defendant has no interest in the land in dispute, that is to say, the land verged brown on the plan filed by the plaintiffs and accordingly I ask leave to discontinue or withdraw participation of the 2nd defendant in the matter.”

In his judgment, exhibit T, the learned judge who had heard the case, Hughes J., summarised this aspect of the proceedings as follows:-

“In July, 1956, on the application of persons claiming to represent certain sections of the Umuamese family of Ogboli Olosi, leave was given to join such persons as defendants. The sections of the Umuamese which such persons claimed to represent included the Umuonyezuna to which the defendant Michael Ibeziako belongs. It was stated in the affidavit supporting the motion to join those defendants that the land in dispute is the property of the Umuamese and that ‘the right of the entire Umuamese family over the land in dispute is bound to be affected by the result of the said action.’ In February, 1958, when the case came on for hearing counsel for the persons who had been joined as defendants informed the court that on the receipt in January, 1958, of the plan which had been prepared at the instance of such defendants it was realised that they (the defendants who had been joined) had no interest in the land in dispute. An application to strike out such defendants was accordingly granted. The position therefore is that there now remains the one defendant against whom action was originally taken in the Native Court.”

These then are the facts and circumstances surrounding the episode of the joinder of the two persons claiming to represent the Umuamese family. We have already referred to the comments of the learned trial judge (Kaine J.) which are being attacked on this appeal. We are not for ourselves in any doubt as to the factual significance of this episode; indeed we are not in any doubt that on realising from their plan what the claims of the plaintiffs by their plan (exhibit A in these proceedings) encompassed, the parties joined discovered that the lands concerned were outside the area of their own claims. As their own lands lay to the east of the plaintiffs’ land, it is manifest that they were by their conduct and action no more opposing the course of the plaintiffs’ eastern boundary in the plaintiffs’ plan which they had seen and examined, i.e. exhibit C (in the present proceedings). It is unfortunate that the learned trial judge in discussing the significance of their appearance (and disappearance) had used an expression which is capable of being interpreted as a finding of “acquiescence” in law, but we do not agree that he had in that con employed that word in that legal signification. Our view of the observations of the Learned trial Judge in the con in which the passage occurred and which we have set out earlier in this judgment is that he expressed the view that by their withdrawal of opposition to the plaintiffs’ claim the parties joined who are members of the family of the defendant and indeed the owners of the radical title through which the defendant was claiming, had ceased to disagree as far as they were concerned, that the plaintiffs’ eastern boundary did not overstep into their own lands. It matters not whether those sought to be joined obtained an order of representation or not. That was their business as by the wording of Order IV Rule 3 (Eastern Region High Court Rules) nobody except themselves could have obtained such an order for themselves. Surely, if they had fought the case and won, their other people of Umuamese would have joined to reap the fruits of their success and the present defendant would be no less vocal in his acclamation of the radical title of the Umuamese family. We are clearly of the view that the Learned trial Judge was entitled to make the observation which he had made in this connection and this ground of appeal fails.

In the course of argument before us, it was submitted for the defendant that the Learned trial Judge was wrong to have accepted the evidence given by S. K. Obi, one-time head of the defendant’s family, as to the extent and boundaries of the land of the Umuamese people. Mr. Obi had died at the time of the present trial but the transcript of his evidence given before Hughes J. was produced in evidence as exhibit O. In appraising his evidence, Hughes J. had said in exhibit T as follows:-

“His evidence as regards these plans as well as his evidence relating to other matters, particularly exhibit J, was quite unreliable and I am unable to accept his testimony. From his demeanour he certainly did not give the impression of being the kind of person who could be ‘forced’ into doing anything; according to him he was the oldest member of the entire Umuamese family and the person to whom the descendants of Onyezuna do homage as the head of the family, he appeared to be the person who gave, and not the one who took orders. His actions during the course of the dispute between the parties was governed, not by what he may have regarded as the rights of the respective parties, but by whatever his personal relationship with them happened to be at the relevant time.”

In the present hearing the Learned trial Judge, Kaine J., accepted the testimony of Obi since it seemed to him to support other evidence given before him and accepted by him. It was argued before us, although without the support of any legal authorities, that the learned trial judge (Kaine J.) was in error of law in accepting that testimony since it had been rejected by the judge before whom it was given. We do not subscribe to this submission of learned counsel for the defendant. The findings of fact of a court of co-ordinate jurisdiction should be looked at with respect by the other court but certainly those findings are not binding on that other court. The purpose of putting exhibit O in evidence is for the trial judge to consider it along with other evidence in the case, oral and documentary, and certainly not to re-echo the judgment of another court on that exhibit. No court should on matters of fact simply rubber-stamp the decisions of another court and concerning the argument placed before us, we observe that it would be iniquitous to attempt in this way to fetter the discretion of a court with respect to what its views should be on a dispassionate consideration of the evidence, oral and/or documentary, placed before it.

We have set out briefly the comment of Hughes J. on the evidence of S. K. Obi. That evidence is now contained in exhibit O in the present proceedings. Obi had claimed to be the head of the family of the Umuamese people; he had claimed to be descended from Onyezunaone of the two children of Amese. He confirmed that the elders of Amese did give the defendant land but stated that they had told the defendant that he was “not to go on anyone else’s land.” Obi had stated that the two persons who applied to be joined as co-defendants but later withdrew belonged one to the Onyezuna branch and the other to the ,Okwobie branch. He had stated further in exhibit O as follows:-

“We the Elders, did instruct defendant to build on certain land j because he had told us that Government were trying to take our land; 1: the land on which we told him to build was not the land in dispute.”

The learned trial judge who first heard this case, Hughes J., criticised the witness Obi and castigated him in the most unpleasant terms but he did not decide the case on the uselessness of Obi’s evidence. He did not decide the case on his disbelief of the boundaries shown in the plan exhibit H prepared on the instructions of Obi. He decided the case on the uncertainty of the plans-all the plans-put together. The Federal Supreme Court in its judgment exhibit X thought that he was wrong to do this. The learned judge’s opinion of the witness Obi and his evidence was therefore not tested by any other court. After all, the learned trial judge, Kaine J., did not make any particular use of Obi’s evidence in deciding this case and all he had said concerning it is as follows:-

“It is the defendant’s case that the land called Iyiukwu land including the portion now in dispute was formerly the communal land of Amese family but when a dispute arose sometime before 1905, the other sub-family of Amese refused to swear juju that the land was Amese land, so a representative of his sub-family of Umonyezona swore to the juju and from that time they became the exclusive owners of the whole of Iyiukwu land. This story does not appear to be supported by the joint defence of the two sub-families where they said in their statement of defence that the land was the communal land of the whole of Amese. It was also not supported by the evidence of S. K. Obi and that of John Odiari exhibits O and P.”

This was the view of the learned trial judge in the present proceedings concerning the exhibit and in our judgment it is a view which is abundantly supported by the plethora of evidence from both sides of the contest and tending to show without equivocation that the adverse comments on Mr. Obi’s evidence might not be justified on a closer study.

We have come to the conclusion that the grounds of appeal attacking the use of Obi’s evidence and the episode ofthe joinder of the Umuamese family must fail.

Next it was argued that the learned trial judge was wrong to have given the plaintiffs judgment since they had failed to prove their eastern boundary and the names oftheir boundarymen as appearing on the plan, exhibit H, and indeed on their plans upon which they were relying in the present proceedings. It was further submitted to us that the names of boundaries and boundary men shown on the plaintiffs’ writ were not proved as such and that in any case the Federal Supreme Court had asked that the case be re-tried so that further and better evidence might be forthcoming from the plaintiffs in respect of these matters.We do not think that these criticisms are justified.The Federal Supreme Court in exhibit X did not dictate what evidence or nature of evidence should be given by the plaintiffs at the rehearing. The Federal Supreme Court pointed out that Hughes J. did not consider and appraise the other evidence in the case as presented before him but that he had relied only on the inconsistency between the plan produced by the plaintiffs before him (i.e. exhibit A there but exhibits A, Band C at present) and a plan later produced by the defendant from some custody which was not unexceptionable and put in evidence before him only for the purpose of discrediting the plaintiffs on the evidence of one of their boundaries (i.e. exhibit L there but exhibit H in the present proceedings). Concerning this type of reasoning which was the main plinth on which the judgment of Hughes J. rested, the Federal Supreme Court (Brett F.J.) in exhibit X observed that they disagreed with the reasoning of Hughes J. and that a fuller and closer consideration of all the evidence as presented might reasonably lead to conclusions different from those at which Hughes J. had arrived.

In the course of the present hearing, the learned trial judge was at pains to consider the evidence about all the plans and the boundaries. He especially studied the plan exhibit H and the submissions of the defence in respect of it. He commented on that point as follows:-

“On the other hand I may go further to say that when the plan was made, the plaintiffs showed that their land extends to the eastern side of Oguta Road and includes a large portion of land now in dispute. I am also inclined to agree with Mr. Ikpeazu that the plan on which the plaintiffs are relying, that is the plans exhibits A, B and C, have nothing indefinite about them as far as the land in dispute is concerned and even the defendant in his evidence agreed that the land which the plaintiffs claim to be the land in dispute is the extent of the land which he got from his family so that as far as the land in dispute is concerned, both parties know the land which is disputed and are agreed as to the extent and boundaries.”

This was in effect the substance of the comments of the Federal Supreme Court and where the plaintiffs’ own feeble evidence about their own boundaries tallies with that of the defence, that clearly is a case where the defence tends to strengthen the plaintiffs’ case. We do not accede to these grounds of appeal and they must as well fail.

Again it was argued for the defendant that the plaintiffs had failed to prove acts of possession on their part and that the learned trial judge failed to give due weight to the evidence of the defence depicting extensive acts of possession of the land, especially when by asking for recovery of possession of the land from the defendants on their writ the plaintiffs have admitted that the defendant was in possession at the time of the institution of the action. For his part and on this point, learned counsel for the plaintiffs contends that the plaintiffs were always in possession of the land, that they had fought and won several native court cases on and over the land in dispute (i.e. exhibits Q, Q1, R1 and R2), that there was abundant evidence from the plaintiffs’ witnesses as to actual acts of possession exercised by the plaintiffs’ people on the land, that they had made publications in the local dailies (like the defendant) in assertion of their rights of possession (i.e. exhibit M-The Nigerian Spokesman of 22nd January, 1953) and that the defendant was trying to hold on to the possession which he has alleged in his pleadings he had wrested from the plaintiffs by his act of trespass which had necessitated the whole case. We have no difficulty in preferring and accepting the submissions on behalf of the plaintiffs. We had pointed out numbers of times that it is wrong to join a claim for trespass with one for recovery of possession, for whilst the claim for trespass contemplates that the plaintiff is in possession the claim for recovery of possession suggests that he is out of possession. (See our observations in Aromire v. Awoyemi, S.C. 38/69 of 11/2/72). In the present case, if the evidence given by and on behalf of the plaintiffs with respect to their own acts of possession on the land in dispute is accepted, as indeed it was, then clearly the defendant had obtained whatever possession he had of the land in dispute or part of it by the very act of trespass which has grounded his case. In such a case, the appropriate claims are for damages for trespass and an injunction and a claim for recovery of possession is not appropriate. That claim should therefore be struck out and the order of injunction made in this case will adequately deal with the situation.

We are in agreement with learned counsel for the plaintiffs that there was clear evidence of possession given by and on behalf of the plaintiffs. The learned trial judge preferred and accepted that evidence and no argument of any substance sufficient to warrant our disagreement with the learned trial judge on his acceptance of that evidence had been addressed to us on this appeal. This ground of appeal also fails.

In the end, all the grounds of appeal canvassed on behalf of the defendant fail and the appeal itself must fail and it is dismissed. As observed by us, we would strike out the claim for recovery of possession. It is accordingly ordered that the plaintiffs’ claim for recovery of possession be struck out and it is hereby struck out, otherwise the judgment of the learned trial judge stays and is in all other respects affirmed. The appeal fails and it is dismissed. The appellant will pay the costs of the appeal fixed at 87 guineas.

SC.514/1965