Total (Nig.) Ltd. & Anor V. Wilfred Nwako & Anor (1978)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

This appeal has raised before us very many important questions of evaluation of the evidence led before the trial Judge, Aseme, J. against whose judgment this appeal has been brought.

The claim before him, sitting at Awka in the Anambra/Awka Judicial Division of the High Court of the East Central State (but now a division of the High Court of Anambra State) was for

“(1) A declaration that the Plaintiffs are the absolute owners in possession free from encumbrances of the parcel of land situate at Abagana within the jurisdiction known as Agu Ekpotu the boundaries of which are delineated in plan No. PO/E218/72 filed with this Statement of Claim;

(2) 300 Pounds damages for trespass;

(3) An injunction restraining the defendants, servants, agents, and privies from further entry into and use of the plaintiffs’ said land or in any manner whatsoever interfering with the plaintiffs’ ownership or possession of the said land.”

Pleadings were ordered and duly delivered and after hearing evidence of witnesses and addresses of counsel who appeared for the parties, the learned trial Judge delivered a considered judgment in favour of the plaintiffs wherein he inter alia observed:

“Having made the various findings above, the plaintiffs are entitled to succeed in their claim for declaration. I shall now consider the claim for trespass.

Be that as it may, Obreke has not been sued and the trespass complained of is that of the 1st Defendant, the Total Nigeria Limited, who in 1972 sought to erect a petrol filling station. No witness on behalf of 1st Defendant testified and there being no rebuttal by them of evidence of the Plaintiffs in support of the claim for trespass, there ought to be judgment for the Plaintiffs against 1st Defendant. Nwabuoku v. Ottih (1961) 1 All NLR 48. In their pleadings, 1st Defendant relied on Deed of Lease of the land in dispute from the 2nd Defendant. As I have found above, 2nd Defendant and his people had no right to grant a lease of the land in dispute.

In the circumstances, the claim for trespass succeeds against both defendants. There remains the claim for injunction.No equitable defences were pleaded or proved and the claim for injunction against both Defendants also succeeds…”

Before us the appellants’ counsel has complained of the judgment on many grounds. This was after the grounds set out in the Notice of Appeal has been substituted with 7 new grounds. These grounds argued before us read as follows:-

“(1 The learned trial Judge misdirected himself in law fundamentally on the case propounded by the plaintiff when he held:-

“The Plaintiffs who are the Urumpi community in Orofia have pleaded that traditionally their forebears are of Amaenye stock which is the same ancestry of the 2nd defendant”

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