Wilfred Okpaloka & Ors V. Ben Umeh & Anor (1976)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, Ag. J.S.C. 

The plaintiffs/appellants instituted this action in the High Court of Justice of the East Central State holding at Awka claiming:

1. 2,000(pounds) special and general damages for trespass to their land known as Ofia Iyi Uga, whereof 1,050(pounds) -special damages and 950(pounds) – general damages.

2.Injunction to restrain the defendants, their agent and/or servants from further crossing the established boundary and interfering with the land in dispute.

3.An order of the court that the damaged and/or the missing beacons marking out the boundary be replaced.”
Pleadings were ordered and duly delivered.

After hearing evidence, Aseme, J., the learned trial Judge gave a considered judgment in which he dismissed the claim in its entirety finding as follows:-

“I find as a fact that the occupation of the land by the defendants and the various acts done thereon by them have been over a considerable number of years before this action was commenced and that the plaintiffs have never been in exclusive possession of the lands. Trespass is an invasion of present possessory title and in view of the conclusion I have already reached, plaintiffs’ claim for trespass is misconceived. Awooner Renner v. Annan 2 WACA 258.  Alternatively, plaintiffs’ claim for trespass must fail for although the plaintiffs averred that the trespass complained of was committed in 1970, evidence of the 1st plaintiff who was the only witness on this point showed that the alleged trespass was committed in 1969 and this is fatal to the case of the plaintiffs. In passing, it is necessary to observe that the items of special damages were never proved.

I now come to the claim for injunction. In an appropriate case, the relief of injunction can be granted although the claim of trespass is refused. As already stated, claim for trespass and injunction raises the issue of title and if the plaintiffs have succeeded to prove title I would still decline to grant the claim for injunction on the equitable ground of long possession and laches as pleaded by the defendants……………………….  I have found that the defendants are deeply entrenched on the land, many of them were born there, and it will be inequitable to grant an injunction to restrain them from going on the land in dispute where they have lived for many years. The claim for injunction is therefore refused. The claim for an order to replace boundary pillars must also fail, for, I cannot make such order unless I am first satisfied that the pillars were properly erected there and that they were removed by the defendants. From the evidence before me I am not satisfied. Finally, plaintiffs’ claim for trespass, injunction and order to replace boundary pillars are hereby dismissed with costs.”

Aggrieved by this decision, the appellants have brought this appeal to this court. Nine grounds of appeal were at the hearing by leave of this court substituted for the original six grounds for appeal. But only grounds 1, 2, 3, and 5 raised any point of substance and read as follows:

“1.That the judgment is against the weight of evidence.

2.That it was established by evidence that the Plan No. EC/70/55 tendered as Exhibit “B” was the original copy of the plan tendered by the plaintiffs/appellants’ people in suit No. 0/42/55 and on which the judgment in that suit was based and therefore the learned trial Judge was wrong in holding otherwise and in failing to give proper consideration and effect to the boundaries as delineated in Exhibit “B” and the judgment in Suit No. 0/42/55.

3.     That the defendants/respondents were and are precluded by the findings of fact and the decisions in Suits Nos. 0/30/47 and 0/42/55 in laying claim to the land on the plaintiffs/appellants’ (people of Umueze village of Uga) side of the established boundary as shown in exhibits “A” and “B” and the learned trial Judge was wrong in not giving effect in his judgment to the findings of fact and the decisions in the aforesaid Suits Nos. 0/30/47 and 0/42/55.

5(a)  That the learned trial Judge was wholly wrong in holding that the plaintiffs/appellants were using their victory in Suit No. 0/30/47 to claim the land where the defendants/respondents village is situated when such an allegation was not established, nor any proper and credible evidence tendered in proof thereof.
5(b) That at no time was it admitted that the defendants/respondents’ plan No. MEC/299/71 correctly showed the area in dispute in Suit No. 0/30/47 and the learned trial Judge was therefore wrong in so holding and in relying on the same in coming to his decision.

5(c)  That the learned trial Judge misdirected himself both in law and in fact by stating as follows: