Okechukwu Nathan Vs Frederick Okafor (1961)

LawGlobal-Hub Lead Judgment Report

TAYLOR, F.J 

The plaintiffs/appellants took out a summons in the Mbamisi Native Court, Awka Division, in Eastern Nigeria, claiming the following:-

(a)Declaration of title to the land at Oko occupied by the C.M.S. since 1916 into which the defendants have trespassed.

(b)Damages for trespass committed by the defendants by farming and building on the said land, destroying crops in C.M.S. School farm assessed at £100.

(c)Injunction to stop the defendants, their agents, or servants, from further acts of trespass on the said land or to any C.M.S. land in Oko. Dispute arose about six months ago.

The suit was, on the 21st July, 1955, transferred to the High Court, then the Supreme Court, by the District Officer of that Division. The learned trial Judge, after hearing evidence adduced by both sides dismissed the plaintiffs’ case with costs in favour of the defendants.

At the hearing of the appeal, Mr. Umezinwa, the appellants’ Counsel, abandoned the original grounds of appeal with the exception of ground 3 (v), which he argued together with the three additional grounds. It will be convenient if I deal with this original ground first as Counsel for the respondents conceded that the appellants must succeed in this appeal to the extent urged in this ground of appeal which states that:-

The learned trial Judge was wrong in Law to dismiss the whole of the plaintiffs claim when the greater portion of the land claimed by them was admitted by defendants to be in their occupation.

The appellants’ claim, in the lower Court, is by paragraphs 9, 10 and 26 of the Statement of Claim related to the area edged yellow in exhibit ‘I’, though they pleaded, and adduced evidence, to the effect that the area actually granted to them was larger than the area edged yellow. At the trial, the respondents filed a plan, exhibit ‘2 ‘, which showed that they joined issue only as to the area edged pink which is south of the Ekwulobia/Ajalli road, and west of the area edged blue. They show in their plan, exhibit ‘2’, that the area edged blue was granted to the appellants, and similarly the area to the north of the Ekwulobia/Ajalli road.

The learned trial Judge held, inter alia, that:–

The plaintiffs are in effective and undisputed occupation of a portion of land not in dispute.

By this I understand the trial Judge to be making reference to the areas to which I have already drawn attention, for in an earlier portion of the judgment he says this:–

The portion in dispute is not the whole of Ugweke verged yellow in exhibit ‘I’ bounded by pillars but the portion along the Ekwulobia-Ajalli road in the south-west, called by the plaintiffs in evidence – “the Idinwota Portion”.

The learned trial Judge, in spite of this finding, then proceeded to dismiss the action, the effect of which was to dismiss the whole of the plaintiffs/ appellants claim to the land edged yellow, which area included that area admittedly granted to the plaintiffs/appellants. The order of dismissal is of course wrong to that extent and this ground of appeal must therefore succeed.