Nathaniel Onwuka Ajero & Anor. V. Bernard Ugorji & Ors. (1999)
LAWGLOBAL HUB Lead Judgment Report
I. L. KUTIGI, J.S.C.
In their Amended Statement of claim the Plaintiff’s claims against the Defendants jointly and severally,it reads as follows-
“(a) A declaration of title to those certain THREE pieces or parcels of land known as and called ISIUGWU, ISIMKPA AND UZI situate at Ubaha Nsulu, Northern Ngwa Division, the annual value whereof is N30,00 (Thirty Naira):
(b) N2, 000.00 (Two Thousand Naira) being special and general damages for the acts of trespass committed by the Defendants on the said lands since the 22nd day of July, 1974 and;
(c) Perpetual injunction to restrain the Defendants by themselves, by their servants, agents and otherwise from committing further acts of trespass on the said parcels of land.”
Pleadings were ordered, filed and exchanged. Thereafter the case proceeded to trial. At the trial two witnesses testified for the Plaintiffs. The Defendants who were served with the hearing notices consistently absented themselves from court and they were not represented by any counsel at the hearings.
In a reserved judgment the learned trial judge entered judgment in favour of the Plaintiffs against the Defendants jointly and severally in the following terms:-
“(1) A declaration that the plaintiffs are entitled to the customary right of occupancy of the three pieces of land known as and called Isiugwu, lsinmkpa and Uzi situate at Ubaha Nsulu in lsiala Ngwa Judicial Division and clearly verged red in Survey Plan No. MEC/489/74 – AB tendered as exhibit A in this case.
(2) N300.00 general damages against the 1st, 2nd and 5th defendants.
(3) Perpetual injunction restraining the defendants by themselves their servants agents or workmen from entering the land in dispute and doing any manner of work therein.”
Aggrieved by the judgment of the trial High Court, the Defendants appealed to the Court of Appeal holden at Port-Harcourt. In their brief they formulated the following three issues for determination by that court –
“(1) Whether the learned trial judge was right in holding that on the scanty and contradicting evidence before him the respondents were entitled to judgment:
(2) Whether it was justified to deny the parties their constitutional right to address the court at the conclusion of evidence as provided by law.
(3) Whether the appellants were given a fair hearing in the case.”
The Court of Appeal considered each of the above issues in its judgment. Both issues (2) and (3) failed. Issue (1) succeeded whereby the Court came to the conclusion that the learned trial judge was in error to have entered judgment for the Plaintiffs/Respondents. The appeal was therefore allowed and the judgment of the trial High Court was set aside and in its place an order of dismissal of Plaintiffs/Respondents’ claim was entered.
The Plaintiffs being dissatisfied with the judgment of the Court of Appeal have now appealed to this Court. The parties filed and exchanged briefs of argument in the appeal. These were adopted and relied upon at the hearing during which additional oral submissions were made by counsel on both sides.
Mr. Ajayi, SAN, learned counsel for the Plaintiffs in his brief of argument formulated the only issue which arises for determination in this appeal thus”
Does the failure to establish a claim to title necessarily involve a failure of a claim for damages for trespass and injunction”
It was submitted that the judgment of the Court of Appeal showed that it ordered the dismissal of the Plaintiffs’ claims simply on the contradiction in the evidence of the Plaintiffs in relation to proof of title in respect of the land in dispute. He said the Court of Appeal failed completely to consider the Plaintiffs’ other two heads of claim namely “damages for trespass” and “injunction” even though they failed to establish their claim to title. He said since the Plaintiffs have proved that they were in possession of the entire land in dispute and have equally proved acts of trespass by the Defendants, the Court of Appeal ought to have found in the Plaintiffs’ favour damages for trespass and injunction because the fact that they failed on a claim for title does not mean that their claim for damages for trespass and injunction to the same piece of land must necessarily fail. A number of cases were cited in support. They include –
Oluwi v. Eniola (1967) NMLR 339
Renner v. Anan (1935) 2 WAC A 258
Kareem v. Ogunde (1972) 1All NLR (Pt.1) 73
Enang v. Adu (1981) 11 – 12 S.C. 25
Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt.146) 578
Learned counsel referred to paragraphs 4, 5, 16, 17, 18, 20 and 21 of the Amended Statement of Claim and to the evidence of both P.Ws 1 & 2 which showed that the Plaintiffs have been in undisturbed possession of the land in dispute by farming thereon, granting portions to different persons for periodic farming including the grant to the Government of Eastern Nigeria for the construction of a Teachers Training College.
He said P.W.1 in particular took the surveyor to the land in dispute, showed him the boundaries and features on the land which were all inserted in the Survey Plan Exhibit A, the only plan produced at the trial since the Defendants produced no plan of their own. He said the Plaintiffs’ evidence of acts of possession were accepted by the learned trial judge because their evidence was not challenged at the trial by way of any cross-examination or contradiction. The evidence in support of acts of trespass by the Defendants and resistance to these acts were also direct and uncontradicted. He said the legal implication of failure by the Defendants to lead evidence in support of their pleadings in that their pleading should be deemed to have been abandoned. He referred to Ojikutu v. Odeh (1954) 14 WACA 640, Union Dominion Corp. (Nig.) Ltd. v. Ladipo (1971) 1 All NLR 102, Omoboriowo & Anor.v. Ajasin (1984) 1 SCNLR 108, (1984) 1 S.C. 206. We were urged to allow the appeal in part by awarding to the Plaintiffs damages for trespass and an injunction as claimed by them.
Responding, Mrs. Offiah learned counsel for the Defendants submitted that although the Plaintiffs pleaded acts of possession, the evidence led thereon was scanty as only two witnesses (P.Ws 1 & 2) were called by the Plaintiffs. She said in a claim for damages for trespass and injunction, the Plaintiffs to succeed must prove that they are in possession of the land in dispute which they failed to do. It was further submitted that although the learned trial judge accepted evidence of acts of possession by the Plaintiffs, the Court of Appeal found that the two witnesses called by the Plaintiffs contradicted themselves, their case therefore failed. She agreed that it is not in all cases that failure to establish a claim for a declaration of title to land carries with it failure to establish claims for trespass and injunction, but added that it is only a person in possession of the land in dispute at the time of trespass that can succeed in a claim of trespass and injunction. She said that P.Ws 1 & 2 called by the Plaintiffs having contradicted each other, it was not possible to accredit one and discredit the other. The prayers for damages for trespass and injunction must therefore stand or fall on the success or failure of the declaratory relief sought. A number of cases were cited in support including –
Uzoukwu v. Ezeonu (1991) 6 NWLR (Pt.200) 708:
Amakor v. Obiefuna (1974) 1 All NLR (Pt.1) 119:
Ojibah v. Ojjibah (1991) 5 NWLR (Pt.191) 296:
Aromire v. Awoyemi (1972) 2 S.C. 1:
Oladehin v. Continental ile Mills Ltd. (1978) 2 S.C. 23;
Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt.146) 578.
The court was urged to dismiss the appeal and affirm the judgment of the Court of Appeal.
Before us in court as well as in his brief of argument Mr. Ajayi for the Plaintiffs, made it abundantly clear that he did not seek to challenge the dismissal of the claim for a declaration of title as he conceded that there were contradictions in the evidence of the Plaintiffs in relation to the proof of title in respect of the land in dispute but he said there was sufficient evidence of possession by the Plaintiffs to warrant a finding for them on their claims for damages for trespass and injunction which issue was never addressed by the Court of Appeal. I think the law involved is quite clear. It is that the claim for damages for trespass is not dependent on the claim for a declaration of title as the issues to be determined on the claim for trespass are whether the Plaintiffs had established their actual possession of the land and the Defendants’ trespass on it which are quite separate and independent issues to that of their claim for a declaration of title; while a claim for injunction is also not necessarily bound to fail after a claim for a declaration of title fails, provided the area of land in respect of which an injunction is sought is clearly defined and ascertained (see for example Oluwi v. Eniola (supra), Kareem & Ors. v. Ogunde & Anor. (supra).
It is doubtless from the pleadings that the Plaintiffs pleaded various acts of possession in paragraphs 4, 17, 18, 20 and 21 of their amended Statement of Claim, thus –
“4. The land, the subject matter of this action (hereinafter called the land in dispute) is shown with its boundaries, features and abuttals on the Plaintiffs Plan No. MEC/489/74-AB filed with the Statement of Claim and therein verged Red. However, for the sake of convenience in that the Plaintiffs practice crop rotation, the land in dispute is divided into 1 portions which portions are given separate names as follows: UZI land ISINGWU land (shown verged Green);
- The Plaintiffs have been in undisturbed possession of the land in dispute by farming thereon, granting portions to different persons for periodic farming upon payment of money and without let or hindrance from anyone whomsoever including the defendants.
- Sometime in 1947, late Chief Josiah Wachuku of Nbawsi, without the leave or consent of the Plaintiffs, broke and entered Uzi land, cleared a portion thereof and erected a hut thereof preparatory to establishing thereon an oil mill. The plaintiffs in exercise of their rights of ownership demolished the said hut and set fire to the ruins thereon. As a result, Chief Madugba, Oguama and some other men and women of the plaintiffs people were arrested and detained at the cell of the Ohuite Native Court, Nsulu, near Mbawsi. They were released in the evening of the same date of arrest and later that night the Ohuite Native Court Hall was set ablaze after all the courts records, furniture and property had been carefully removed from the said building. In consequence there followed a mass arrest of the Plaintiffs men and women on the allegation that they burnt down the Ohuite Native Court hall. Those arrested were detained at the Aba Prisons. About 37 of those arrested were arraigned before the Magistrate Court, Aba, charged with the offence of unlawful assembly while five were charged to the High Court, Aba, with the offence of arson. All the accused persons defended by Mr. J. A. Wachuku and Dr. Udo Udoma were acquitted and discharged.
- Thereafter the Plaintiffs’ people resumed peaceable and quiet possession and enjoyment of the Lands in dispute.
- In or about the year 1955 the Plaintiffs were approached through their then councillor. Chief T. O. Okorie for a grant of their Osogu and Nkpagu lands for the establishment of the Teacher Training College, Nsulu. The Plaintiffs granted the said lands to the Government of the former Eastern Nigeria but reserved to themselves the right to own, use and enjoy the swamps on the sides of the Ota Mid Ubaha stream. The Plaintiffs were notified in writing by Mr. Ogasi the Principal of the said College to remove their crops then growing on the site.
- After the war when the Nsulu Teacher Training College was moved to Ihie, the Plaintiffs re-entered Osogu and Mkpagu lands and farmed and used the same until the said land were required by the Government of the East Central State for use as a Games Village.”
Most of the averments must be deemed to have been abandoned as no evidence was led in support thereof (see Oke-Bola v. Molake (1975) 12 S.C. 61). But the Plaintiffs in my view did give sufficient evidence of their possession of the land in dispute, and not merely meagre as submitted by Defendants’ Counsel, in support of their claims.
P.W.1 testifying on page 20 of the record said –
“I made a plan of the land in dispute as ordered by the Court. I took a surveyor to the land and showed him the boundaries and features on the land which he inserted on the plan. This is the plan filed in court,… I know the former Teachers Training College now called Games Village at Nsulu. We gave the land on which the Training College was built to the former Government of Eastern Nigeria; I know the names of our ancestors who deforested the land in dispute”.
After deforestation they farmed on the land,”
P.W.2 also testifying on page 37 of the record said amongst others-
“I know the land in dispute. The three pieces of land belong to our ancestors. Three succeeding generations had farmed on these lands before our own generation…These people are dead and we now farm on the lands,”
The learned trial judge accepting these acts of possessions on the part of the Plaintiffs found positively in their favour when he said in his judgment on page 43 of the record as follows –
“The plaintiffs led evidence in this case. They were not cross-examined by the defendants who chose to be absent during the trial although, the court had adjourned this case on several occasions to enable them appear. The evidence of the plaintiffs as to how their named ancestors deforested the lands in dispute, farmed on the same land for at least the last three generations, that the said ancestors … are now dead and that since their deaths and up till now the plaintiffs have been farming on the lands in dispute remains unchallenged and uncontradicted. I accept this evidence as I am bound to do so in view of the authority of Isaac Omoregbe v. Daniel Pendor Lawani (1980) 3-4 S.C. 108 at 117 and Odalaja v. Haddad (1973) 11 S.C. 357. In the same manner I accept their evidence that the defendants entered the lands in dispute wrongfully, and that the 3rd, 4th, 5th, 6th and 7th Defendants were labourers hired by the 2nd Defendant.”
The findings above were never disturbed by the Court of Appeal. It is patent from the record that the Court of Appeal in allowing the appeal never addressed the issue of possession but concerned itself with the proof of title to the land in dispute when it said in the lead judgment on page 169 of the record that –
“In the light of the evidence adduced, did the Respondents (meaning Plaintiffs) establish their claim of communal ownership’) I think not. The contradiction in the evidence of P.W.1 and P.W.2 is a major one. It goes to the basis of the claim which is that the land devolved to the Respondents as communal property. The evidence of P.W.1 that the land was shared is clearly in conflict with their pleadings.”
I entertain no doubt in my mind at all that the record shows that the plaintiffs are in exclusive possession of the land in dispute, as the trial High Court rightly found above. Possession in law means exclusive possession, because if it is not exclusive, the law will not protect it. It must also be remembered that whether or not the act proved is sufficient to establish possession is a question to be decided on the merit of each case. Cultivation of a piece of land, erection of a building or a fence, and demarcation of the land with pegs at its corners have all been held to be evidence of possession (see for example Wuta Ofei v. Danquah (1961) 3 All ER 596 (P.C), Alatishe v. Sanyaolu (1972) 2 S.C. 97). A person can also be in possession through a third party such as servant, agent or tenant. And possession of a predecessor-in-title in law is deemed to be continued by his successor.
I therefore find merit in this appeal. It is accordingly allowed. The judgment or the Court of Appeal dismissing Plaintiffs’ claims is set aside, while that of the trial High Court is restored with the exception of order (1) made by that court in its judgment.
For the avoidance of doubt Plaintiffs claim (a) for a declaration of title to the three pieces of land is dismissed. Claim (b) succeeds and the Plaintiffs are awarded N300.00 (three hundred Naira) general damages against the 1st, 2nd and 5th Defendants only. Claim (c) also succeeds and a perpetual injunction is granted restraining the Defendants by themselves, their servants, agents or workmen from entering the land in dispute and doing any manner of work therein.
The Plaintiffs are entitled to their costs which are assessed at Ten Thousand Naira (N10,000.00)only.
SC.159/1994