Samuel Onwujuba & Ors V. Nathaniel Obienu & Ors (1991)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C. 

The appellants in this appeal, as plaintiffs in the High Court at Nnewi, Nnewi Judicial Division of Anambra State, for themselves and on behalf of the Ekwueme Social Club of Nigeria, Nnewi Branch, claimed against the respondents jointly and severally the sum of N4,098.00 (Four thousand and ninety eight naira) only as damages for trespass.

Pleadings were ordered and exchanged.

The appellants’ case was that in 1972 they approached P.W.5, Igwe Orizu III and the other three Obis of Nnewi and some elders of the town and requested them to grant them a parcel of land on which to erect their Club Hall and the allocation of the land was made to them as requested. It was their case that the parcel of land allocated to them was a portion of Nnewi Communal land. It was also their case that after they had started erecting a building on the land in 1974, the respondents invaded the place, demolishing their building and scattered the heaps of sand and cement blocks which they had gathered on the site.

It was the respondents’ case that the land on which the appellants were erecting their building belonged to their family and had been in their possession from time immemorial. They claimed that before the trespass alleged, the appellants had in fact approached their family head, D.W.2 and had requested him to grant that particular parcel of land to them. They said that D.W.2 agreed to do so on the condition that their request for the land be made by the Management of the Club at their Headquarters – Lagos.

It was their case that instead of the appellants’ Headquarters making the request as suggested, they started erecting a building on the land without their permission. D.W.2 testified that when he found the appellants erecting their building on the land without their permission, his family removed the sign board on which was written “Ekwueme Social Club” and scattered some heaps of sand and cement blocks found on the land.

At the trial both parties gave evidence and called a number of witnesses in support of their respective claims. At the close of the case, the learned trial judge gave careful consideration to the totality of the evidence adduced by the parties and came to the conclusion that the appellants, who were the plaintiffs, had not satisfactorily established, by credible evidence, that they were in lawful possession of the land at the time of the alleged trespass and were not therefore entitled to damages for trespass. He concluded his judgment as follows:-

“Plaintiffs’ Counsel submitted that the plaintiffs are entitled to damages for trespass and materials destroyed by the defendants. Was the presence of the plaintiffs in the land evidence of possession that would entitle them to succeed in an action for trespass against the defendants. The law protects possession however subject to the qualification that, if in fact the possession be without right, it avails only against those who have equally no right to possession, but not against the person to whom the right belongs.” From the evidence, as between the plaintiffs and defendants who has a better right to possess. The plaintiffs contend that the P.W.5 and other Obis granted them the land. Do P.W.5 and other Obis have authority to grant plaintiffs the subject matter of this dispute.

This is extremely doubtful in view of the admission by Igwe Orizu III himself regarding settlement in suit No. 0/13/70 in which His Royal Highness, other 3 Obis and other Nnewi prominent citizens were sued by the defendants. This aspect of the evidence has been dealt with earlier in this judgment. From the evidence by the plaintiffs it is not clear that the grant they got came from those who could make it. The latin maxim “Nemo dat quod non habet” must apply.

They have no right to be on the land and they cannot by their very act of trespass which is clear beyond equivocation acquire possession to maintain an action of damages for trespass. Although the defendants did not institute a cross action for trespass it was clear from the evidence that they have been in possession of the land and have advertised the fact of their possession of to the notice of all who care to respect the law of property. It is my finding that the plaintiffs’ claim of damages for trespass must fail.

As regards the claim for building materials which the plaintiffs said were destroyed it must be understood that “the primary right which possession confers is the right to exclude intruders,” and provided “the force used is reasonable”, the person in possession can eject those interfering with his possession. After a careful consideration there is no merit in the plaintiffs’ case and it is accordingly dismissed.”

Being dissatisfied with the decision of the trial court, the appellants appealed to the Court of Appeal. Enugu Judicial Division, and that Court, on 13th January, 1986 allowed their appeal in part and awarded the appellants the cost of the materials allegedly destroyed by the respondents. It however, dismissed the appellants’ claim of N2,000.00 damages for trespass on the ground that the Igwe Orizu III and the three Obis who claimed to have granted the land in dispute to the appellants were unable to establish their title to the land.

The appellants, still dissatisfied with the decision of the Court of Appeal, have further appealed to this Court on six grounds of appeal.

Both parties filed their briefs of argument, and in their own brief, the appellants formulated issues for determination as follows:-