Okechukwu Nathan Vs Frederick Okafor (1961)
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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.
I will now examine the appeal in so far as it relates to the area edged pink in exhibit ‘2 ‘.
The appellants say that about 1916 they were granted the land known as Ugweke by the Chiefs and Elders of Oko, subject to the rights of those in possession to make use of the land for planting annual crops until the appel-lants are ready to use the land for any purpose.
The appellants aver that they exercised acts of ownership over the area by building schools and churches, etc., on the land. The respondents came to the area around 1940 and, having taken up occupation of land east of the appellants’ land began systematically to encroach on the latter’s land. That in 1955 the respondents pursuing this policy entered the school farm of the appellants and destroyed crops valued at £100. The respondent have never denied their entry on the land, but justify such entry on the ground that the area edged pink on their plan was given to them by individuals who own the respective portions of land enclosed in this area. Several witnesses were called to support the contention of the parties, and the learned trial Judge made certain findings of fact on which learned Counsel for the appellants has relied in arguing his appeal on the first of the additional grounds – weight of evidence – and the 2nd of such grounds which reads thus:-
The learned trial Judge having held that ‘as between the par-ties I prefer the C.M.S. version that the portion in dispute was probably included in the original grant, to the Roman Catholic version that they acquired the land at all let alone piece meal’ was wrong on the facts before him to hold that the plaintiffs have not discharged the burden of proof with a sufficiently high degree of probability.
The issue before the learned trial Judge, as is the issue before us, in view of the admissions contained on the record and with which I have already dealt, simply put, is this:–
Was the area edged pink in exhibit ‘2’ included in the area which the appellants say was granted to them in 1916, bearing in mind that the Ekwulobia/Ajalli road which now separates this area from that admittedly granted to the appellants was not then in existence?
The trial Judge, in his review of the evidence before him, says this: –
I accept as probable and as established that the C.M.S., as a result of a valid grant, acquired a large portion of Ugweke and that, which is not disputed, since 1916, they exercised acts of possession over the eastern portion, and, from about 1955, expanded their occupation north-westward, over portions of land which are not in dispute.
A little lower down, the trial Judge goes on to say, in respect of the area edged pink in exhibit ‘2’ which he refers to as the “land in dispute”, that:-
It is clear that a portion of this land was acquired by the C.M.S. with the consent of the Oko community but it is by no means clear what was the precise area granted.
The position, I take it, was that of the evidence, and admissions made, before the trial Judge, the area edged blue in exhibit ‘2’ the area to the north of that edged pink and also a portion of that edged pink, were granted by the Oko community to the appellants. As for the respondents, the trial Judge dismissed their contentions as unreliable, at the same time, quite correctly, warning himself that the weakness of the defence does not establish the plaintiffs’ case.
With those findings of fact of the trial Judge I find no fault, but it seems to me that he should have gone on to enquire whether, inspite of the fact that the area claimed to have been granted in 1916 was larger than the area edged yellow in exhibit ‘I’, the appellants had not exercised sufficient acts of possession over the area they demarcated by pillars and edged yellow in that exhibit, to enable them to succeed in the action before him. In this consideration I think two matters are of importance. In the first place there is the presumption to be drawn by an application of s. 45 of the Evidence Ordinance to the circumstances of this appeal. That section states that:–
Acts of possession and enjoyment of land may be evidence of ownership or of a right of occupancy not only of the particular piece or quantity of land with reference to which such acts are done, but also of other land so situated or connected therewith by locality or similarity that what is true as to the one piece of land is likely to be true of the other piece of land.
It seems to me that this is most applicable to the area edged pink in exhibit ‘2’, bearing in mind all I have already said, and not forgetting the fact that the Ekwulobia/Ajalli road did not exist in 1916, at the time of the grant to the appellants. The second, and perhaps the more important of the two, is the effect of the existence of boundary pillars enclosing at one time before the removal of some of them by the respondents, the whole of the area edged yellow in exhibit ‘I’. On the evidence before the Court, the pillars were erected between 1940-1941, for James Ekwueme, 3rd plaintiff deposed that:–
The C.M.S. asked us for land… The area was demarcated from rest by planted Ukpaka, Ukwa etc… Igbe
a boundary be-tween one piece of land and another made by trees, our area is shown by pillars along the disputed boundary. Defendants re-moved some of these pillars which were inserted in about 1940-1941 after the dispute.
These pillars remained in existence till some time in 1955 when the present trespass complained of took place. The erection of these pillars in respect of the whole area edged yellow is an act indicating possession of the whole area by the appellants. In a recent case, Wuta-Ofei v. Danquah (1961), 1 W.R. 1238 at page 1243, Lord Guest, delivering the judgment of the Privy Council says this:–
Their Lordships do not consider that in order to establish possession it is necessary for a claimant to take some active step in relation to the land, such as enclosing the land or cultivating it. The type of conduct which indicates possession must vary with the type of land. In the case of vacant and unenclosed land which is not being cultivated there is little which can be done on the land to indicate possession. Moreover, the possession which the respondent seeks to maintain is against the appellant who never had any title to the land. In these circumstances the slightest amount of possession would be sufficient.
A little lower down their Lordships said that:–
It is true there is no evidence when the pillars were erected. But if they were erected after 1940, that would be a definite act indicating possession. Even if erected before 1940, their continuance is some evidence of the respondents’ state of mind as affecting possession.
In the case on appeal before us, the learned trial Judge visited the locus and noted the pillars on the land. In his notes of inspection he says this:-
I was shown some pillars but these pillars were outside the land claimed by the defendants but inside the portion of Ugweke claimed by the plaintiffs. The existence of these pillars is now admitted by the defendants, although a large number of their witnesses including the surveyor, denied their existence.
Taking all these into consideration, I am of the view that an order should have been made as claimed by the appellants for a declaration of title, and I would add the words, “under native law and custom” in view of the evidence before the Court as to the rights of the individual farmers over the land until the grantee is ready to make use of the land. As to the claim for an injunction it reads thus:–
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 appellants are entitled to an injunction, but of course only in respect of the land in dispute and so marked yellow in exhibit ‘F. Before dealing with the claim for trespass I would like to comment on a passage in the judgment of the trial Judge which reads thus:–
The precise extent and area of the grant is not established, alleged acts of possession more or less cancel each other out, in any event, they are not reliably established or numerous or positive enough to found title, possessory or otherwise. (Ekpo v. Ita 11 N.L.R. 68, 69).
It is essential to bear in mind when reading or relying upon this decision also to bear in mind the decision of this Court in the case of Abudulai v. Ramotu Manue 10 W.A.C.A. 172 at 174, where Brooke, J. said that:-
In this connection we think it necessary to point out that that case seems to have been misunderstood (that is the case of Ekpo v. Ita) as going further than it in fact does, owing possibly to the too general terms of the wording of the judgment. It is clear that the dictum does not apply where, as in this case, the plaintiff re-lies upon and proves title by grant; the onus as to acts of owner-ship is only thrown upon the plaintiff where the other evidence of title is inconclusive or entirely lacking.
Now on the issue of damages for trespass, as I have said earlier, the respondents have never denied entry on the land in dispute, and the case was fought in the lower Court wholly on the issue of title. The appellants claim £100 as damages for the trespass. That evidence was not challenged and I would award them the sum claimed.
The judgment of the High Court is therefore set aside, and judgment is entered for the appellants as claimed, subject to what I have already said about the claim for an injunction. As to costs in the High Court, I would normally have awarded the appellants the costs awarded the respondents, but in view of the fact that the trial Judge made it clear that he was awarding the respondents costs at a reduced rate in view of their failure to establish their defence, I order that the costs of the High Court trial be taxed by the Registrar of the High Court. The appellants are entitled to their costs of this appeal assessed at thirty guineas.
Other Citation: (1961) LCN/0938(SC)