Ndukwe Okafor & Ors V. Agwu Obiwo & Anor (1978) LLJR-SC

Ndukwe Okafor & Ors V. Agwu Obiwo & Anor (1978)

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Judgment was on the 30th day of March, 1965 given in the proceedings which started as HU/10/62, in favour of the plaintiffs (the respondents herein) against the defendants (the appellants herein) by the High Court of the former Eastern Nigeria (now, Imo State of Nigeria) holden at Umuahia (Allagoa, J., (as he then was) for:

(1) a declaration of title to parcel of land known as “Ubakwu Ukpo” lying and situate in Abriba, (in the then Bendel Division) and which parcel of land is shown delineated and verged yellow on Plan No. ESP/1296 (LD) – Exhibit ‘A’ in these proceedings;

(2) 125 Pounds (i.e. N250) as special damages and 100 Pounds (i.e. N200) as general damages for trespass; and

(3) a perpetual injunction restraining the defendants their servants and/or their agents from further trespassing on the land, “Ubakwu Ukpo.”

The respondents herein claimed from the High Court aforesaid against the appellants herein orders for declaration of title to the land known as “Ubakwu Ukpo” (hereinafter called the land in dispute) 300 Pounds (i.e N600) as special and general damages for trespass by the appellants on the land in dispute and, for perpetual injunction.

As appears from their pleadings the case for the respondents may be thus summarised: The land in dispute is part of an entire area of “Ukpo lands” “absolutely owned” by their ancestor – Ukpo – who was the first person to settle on these lands. Right of ownership of these lands “descended to them” through their forefathers who, as children of Ukpo, had inherited them from him. In the course of years they had before them, their forefathers, exercised and still exercise rights of ownership of these lands and, in particular, the land in dispute by farming and, cultivating palm plantations thereon and also granting portions thereof to strangers, for purposes of farming, upon payment by them (the strangers aforesaid) of tributes and/or rents; these they did openly but without any interference or hinderance from anyone whomsoever (and in particular, the appellants). In 1940, however, the people of Ndi Ebe in Abam trespassed on the land in dispute and consequently, a member of their community – one Kalu Umo in Suit 12/40 brought, on behalf of the respondents against Kalu Irolo (as a representative of the people of Ndi Ebe aforesaid), an action (in the Abam Native Court) in which he successfully claimed a declaration of title to the land in dispute.

The respondents claim that, at all stages in the prosecution of this suit the appellants are very much aware of the proceedings aforesaid but neither applied to join in the proceedings nor appealed from the judgment of the native court which was in favour of the respondents. Twenty-one years after judgment in the said suit (i.e. No. 12/40 aforesaid) 1961, the appellants trespassed on the land in dispute and for the first time laid claim thereto, damaged and destroyed the respondents’ palm tress thereon as well as cut and removed the “palm bunches” on the said trees; when challenged for their acts of vandalism, the appellants threatened to continue these wanton acts of destruction. Whereupon the respondents commenced these proceedings.

The appellants by their pleadings and in their evidence deny any knowledge of Suit 12/40 aforesaid adding that “in any event any such proceedings are relevant” to the present proceedings on the ground, that they are “res inter alios acta.” It was their case that their ancestor – one Ebulu – through whom they claim right of ownership of the land in dispute was the owner of the said land – which, according to them is, called “IYIOCHA” and not “Ubakwu Ukpo”. Although they claim to defend the suit on behalf of the Umuhu people of Abam they say that the land in dispute belong to a section of Umuhu people of Abam known as Umuokwe. While they do not claim unequivocally that they entered the land in dispute in exercise of their rights as owners thereof, they pleaded, rather vaguely, in paragraph (7) of their Statement of Defence as follows:- The defendants will maintain that should there have been any such entry by them as alleged (i.e. as alleged by plaintiffs) such was done in exercise of their rights as owners in possession.” (Brackets and underlining supplied).

In paragraph 3 of their Statement of Defence the appellants refer to a parcel of land which adjoins the Northern boundary of the land in dispute and claim that they successfully defended a claim in the High Court – in Suit HU/201/61 – to that portion of land by the people of Amamba against the Umuokwe people.

At the close of their respective case, the learned trial Judge reviewed in detail the evidence on both sides and, as already stated in this judgment, found against the appellants and gave judgment in the terms earlier on set out in this judgment. This appeal is from the said judgment. We think it is right to observe, at this stage, that one or two exhibits which were admitted in evidence at the hearing of this case in the lower court got lost during the period of the civil war, 1967 – 1970; but learned counsel for the appellants, however, before the commencement of his argument and submissions in this appeal told the court that he was disposed to argue his appeal although these exhibits were unavailable. As learned counsel for the respondents also had no objection to the appeal being argued in those circumstances, we entertained argument and submission on both sides (i.e. the appellants and the respondents). Learned counsel for the appellants abandoned two of his five grounds of appeal; the three grounds of appeal which were argued read as follows:-

“Ground (1): The learned trial Judge misdirected himself in law and in fact in his finding that the defendants had knowledge of Abam Native Court Suit No.12/40 between the people of Ndi Ebe Abam and the plaintiff’s people.

Ground (2): The learned trial Judge erred in law in using the plan used in the Abam Native Court suit No.12/40 for the purpose of determining the boundaries of the land in dispute in the action before him.

Ground (5): The judgment is (sic) contrary to the weight of evidence.”

The substance of the argument of learned counsel for the appellants in respect of ground (2) which was first argued by him was that learned Judge in the court below erred in law in the use which he made of Exhibit C, the plan which was tendered in the 1940 proceedings (Suit 12/40, Exhibit “B”). According to learned counsel the trial Judge had “used that exhibit – that is, Exhibit C- to establish, and find as proved, the boundaries of the land in dispute as shown in the plan tendered by the respondents in these proceedings (i.e. Exhibit “A”).” As there was no evidence from a surveyor to compare and marry or match, in the course of hearing these proceedings, the two exhibits (“A” and “C”), it was not open to the learned trial Judge to draw the inference, which he did, that the boundaries of the lands shown in both exhibits to be in dispute were in fact the same. Before dealing with the argument in support of this ground of appeal, we think that reference should at this stage, also be made to the arguments and submissions of learned counsel in respect of ground (1). Here, the complaint is that the learned trial Judge erred in his view that the appellants were aware of the proceedings in Suit AD. 12/40 (Exhibit “B”) and that consequently he misdirected himself in the use he made of that exhibit. According to learned counsel for the appellants the trial Judge having misdirected himself on the effect of Exhibit B wrongly concluded that it is operative against the appellants in their stand in these proceedings.

We think that we should now draw attention to the passages in the judgment of the lower court against which the complaints in these two grounds of appeal are directed; these passages read:-

(A) “Mr. Nedd for the defendants referred to the case of Okorie and Ors. v. Udom and Ors…5 F.S.C. 162 and submitted that the proceedings between plaintiffs and Ndiebe Abam (Exhibit ‘B’) do not bind the defendants as they were not parties to the action. In my view the proceedings, Exhibit ‘B’, between the plaintiffs and the people of Ndiebe Abam is only material in this case in so far as it shows that by the plan used in that case (Exhibit ‘C’) it is the same land that is now in dispute, which was then declared to be the land of the plaintiffs. It therefore establishes as has been contended by plaintiffs that they have been in possession of the land in dispute for over 21 years before the defendants trespassed on it in January, 1961….Secondly, from the evidence of Uwaka Okoro called by Ndiebe Abam defendants cannot truly claim that they do not know anything about that dispute because Uwaka Okoro like 2nd defendant in this court claimed that the land belonged to Ndi Anyaeru family of Umuokwe. He must therefore be familiar with the defendants. On the point I find as a fact that the defendants are quite aware of the proceedings between the plaintiffs and Ndiebe Abam which concern this very land in dispute.

(B)….On the other hand I find in the evidence of the plaintiffs and their five witnesses particularly Eleanya Ijere an old tenant…a compelling account as to the boundaries, occupation and long possession of the land in dispute – from which in addition to their former dispute with Ndiebe Abam, I am satisfied that they are entitled to the declaration sought which is tied to their plan Exhibit ‘A’…” (Underlining supplied).

It should be pointed out straight away that there is no justification for the view of the learned trial Judge that the appellants knew full well of the proceedings in Exhibit ‘B’ at the time it took place in court especially on the only ground, as indicated in the “A” section of his judgment (quoted above), that Uwaka Okoro (who was shown by the evidence in the current proceedings to be a member of the appellants’ community) gave evidence in favour of the people of Ndiebe Abam in Exhibit ‘B’. Something more has to be proved to (1) either identify the appellants’ community with Exhibit ‘B’ or (2) show that they qua a community know or ought to know of the proceedings in Exhibit ‘B’ and, that notwithstanding, they stood by while the dispute ‘raged” in the courts between the parties thereto. The fact that a member of a community took part in a court action either as a party or a witness is not by itself enough ground for the conclusion that the community to which that member belongs should be identified with that court action. However, it is quite clear from the foregoing passage of the judgment under appeal that, his erroneous view of this aspect of the matter apart, the use which the learned trial Judge made of Exhibit ‘B’ was entirely in order. It was his view that the exhibit merely sustained the respondents’ claim and evidence of long possession of the land in dispute. It is settled law that although a particular court proceeding and judgment thereon may be inadmissible in the course of trial of an action on the ground that, as between the parties to the action in which it is proffered in evidence, it ought to be excluded on the well-known maxim (of the law of Evidence) res inter alios acta alteri nocere no debet the same (i.e. the proceedings and judgment thereon) may be, and quite often is, admissible in evidence if it tends to support the assertion or claim of the party who seeks to put it in evidence that he and/or his ancestors before him have exercised rights of possession in respect of a particular parcel of land in dispute (See – Kobina Ababio II (Ohene of Brenu) v. Priest -in-charge Catholic Mission, Ampenyi & Ohene Tekyi Akyin III (1935) 2 WACA 280 at 381 – Bennerman, J.) There was, therefore, in our opinion no substance on the first ground of appeal.

With regard to the second ground of appeal it is again well known that the Law of Evidence allows trial courts, generally, to substitute the eye for the ear in the reception of evidence when and as the need arises; and by this procedure valuable inferences can be, and are quite often, drawn from inspection and comparison of plans proffered in evidence by, and received from parties in civil proceedings. On the issue of inspection of objects in evidence Lord macnaghton many years ago observed: “The eye no doubt is the best test. Generally, but not always, the comparison is enough” – (see Hennessey v. Keating (1908) 42 1 LTR 169 (SL) And in another case (action for passing-off) the same learned Judge (Lord Macnaghton) observed: “The Judge looking at the exhibits before him and also paying due attention to the evidence adduced must not surrender his own independent judgment to any witness (and we will add, even expert evidence) (underlining and brackets supplied) – (see Payton & Co. v. Shelling Lampard & Company (1901) AC 308 at 311. There is no doubt , therefore, that testimony from an expert witness – such as a surveyor – after comparison of Exhibits ‘A’ and ‘C’ on the issue of boundaries would be of considerable assistance to the court of trial, but such evidence is not a sine qua non to a specific finding on the issue by that court. However, it is clear that in the instant case the court, after a careful review of the evidence before it, relied mainly on the totality of the evidence before it (including its own visual comparison of the two plans Exhibit s ‘A’ and ‘C’) in arriving at its conclusion as to which of the competing claims (i.e. as between the appellants and the respondents) on the issue of the correct boundaries of the land in dispute it should accept. (See Section “B” of the passage of the judgment quoted above). Immediately prior to the passage of the judgment of the court quoted in the earlier paragraph, the learned Judge also made these observations:-

“…..Under cross-examination 2nd defendant admitted that he does not know the features to be found on the land ……Considering the evidence of the 2nd defendant and his two witnesses, it is obvious that by their contradictions the defendants do not know or own the land in dispute. The defendants did not file any plan and it is difficult if not impossible to tie the evidence of the 2nd defendant to the land in dispute…” (Underlining supplied).

It is pretty clear from the foregoing quotation that the conclusion or inference which the learned Judge drew his visual comparison of Exhibits ‘A’ and ‘C’ was only ancillary to the view he formed, upon a proper appraisal of the evidence before him, (from both sides) that the boundaries of the land in dispute were as (1) described by the respondents in their testimony and (2) shown in their plan Exhibit ‘A’. There is, therefore, no substance whatsoever in the arguments in support of ground two and the submissions thereon by learned counsel for the appellants; and accordingly that ground of appeal fails.

There was hardly any argument or submission of substance in support of the fifth ground of appeal and after a perusal of the entire record of proceedings we were equally satisfied that there is abundant evidence to support the findings of the learned trial Judge.

We were, however, satisfied that the award made by the learned trial Judge in respect of the claim for special damages arising from the removal of bunches of palm nuts ought not to be sustained. The established rule of law and evidence is that special damages if alleged and claimed must be strictly proved. The evidence on record does not justify the award and learned counsel for the respondents concedes that the item of special damages alleged was not proved. No ground of appeal attacking this award was filed; and it was this court that raised the issue ex proprio motu. We are, therefore, unable to sustain the award of 125 Pounds (i.e. N250) in respect of special damages.

Except, therefore, for the award of 125 Pounds (i.e., N250) in respect of special damages which is hereby set aside, this appeal fails and it is accordingly dismissed. For clearness sake, however, it is hereby ordered that there will be judgment in favour of the plaintiffs (the respondents herein) against defendants (the appellants herein):

(a) for a declaration of title to the piece or parcel of land called “Ubakwu Ukpo” lying and situate in Abriba (in the Imo State of Nigeria) and which parcel of land is shown verged yellow on the Plan No. ESP/1296 (LD) – Exhibit A in these proceedings;

(b) 100 Pounds (i.e. N200) as general damages for trespass; and

(c) a perpetual injunction restraining the defendants their servants and/or their agents from entering, and/or further trespassing on, the land “Ubakwu Ukpo.”

The respondents shall have costs of this appeal which is fixed at N335.

Other Citation: (1978) LCN/1978(SC)

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