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

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

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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:

“But there was evidence of both surveyors, 1st P.W. and 1st P.W. which I accept that Exhibit ‘G’ and Exhibit ‘A’ do not cover the same area of land.  Exhibit ‘A’ i.e. plaintiffs’ Plan No. EC/168/71, manifestly shows the village of the defendants although the plaintiffs say that this was only established in 1969”.

“Particulars of Misdirection

(i) It was only as the area verged pink in exhibits ‘G’ and ‘A’ that the surveyors agreed were not the same.
(ii) No where did the plaintiffs/appellants show the land verged pink in Exhibit ‘A’ as the defendants/respondents’ village.
(iii)The learned trial Judge failed to direct his mind to the fact that the land in dispute must be looked at from the plaintiffs/appellants’ claim and that the defendants/respondents never tendered any plan of the land in dispute”.

We think that this is a convenient stage to set out the facts of this case.

The plaintiffs/appellants and the defendants/respondents are neighbours each owning a vast area of land with a common boundary.  One cannot describe the relationship between them as peaceful for record shows that when failure to respect the hitherto indeterminate boundary resulted in frequent breaches of the peace in the area in the early part of this century, the District Officer in Onitsha and the District Officer, Awka, Warrant Chiefs from Eme-Agbaja Nnewi and Isuofia Native Courts and the representatives of the plaintiffs/appellants and the representatives of the defendants/respondents in 1913 met on the land and settled a boundary line between the parties to this case.  This boundary was marked out and demarcated with 19 concrete pillars as a permanent feature. The land of Uga, i.e. plaintiffs/appellants’ land lay to the South of the boundary line while the land of Unubi, i.e. defendants/respondents’ land lay to the North of the boundary line.  This was in 1913. It appears that the people of Etitinabo village of Unubi, i.e. defendants/respondents were either not satisfied with the settlement or simply land hungry for the evidence shows that since 1915, there has been a series of violations of the boundary line with the attendant litigations in court to ensure respect for the boundary line.

However, in 1947, the defendants/respondents having crossed the boundary line, took out an action against the plaintiffs/appellants in Suit No. 0/30/47 claiming declaration of title to a portion of the plaintiffs/appellants’ land known to the plaintiffs/appellants as “Ofia Iyi Uga” but to the defendants/respondents as “Aniagu” comprising of “Akabo”, “Ogwedimdim” and “Akpata”, damages for trespass, and injunction. The defendants/respondents filed and tendered a plan of the land claimed.  They contended that the boundary line marked by the 19 pillars was administrative and not proprietary, but the learned trial Judge, Manson J., found as a fact that the boundary line was proprietary and dismissed their claim (as showing in Exhibit C). Their appeal to the West African Court of Appeal against the dismissal of their claim was lost and the findings of Manson J., confirmed (as shown in Exhibit D).  There was no counter claim in that suit.

In 1955, apparently to utilise the advantage created by the dismissal of defendants/respondents claim in Suit No. 0/30/47 which was confirmed by the West African Court of Appeal on 29th April, 1952, the plaintiffs/appellants (Uga people) in Suit No. 0/42/55 in the High Court of Eastern Region of the Federation of Nigeria claimed against the Unubi people defendants/respondents a declaration of title to the land called “Ofia Iyi Uga”, damages for trespass, and an injunction to restrain further interference of the defendants with the land.

They succeeded in the claim for declaration of title, but lost the claim for 3,000pounds damages for trespass and an injunction for want of proof of the trespass alleged (see Exhibit E) before Reynolds J., on 20th day of July, 1961. In 1967, the civil war came and provided opportunity for more violations of the boundary line.  In 1970, hostilities ceased and the plaintiffs/appellants still bent on asserting their rights of ownership and keeping the Unubi people on their own side of the boundary line and out of “Ofia Iyi Uga” by constitutional and lawful means in the form of court processes on May 8, 1971, instituted the present proceedings in the High Court of East Central State complaining in paragraphs 15, 17, 18 and 19 of the Statement of Claim as follows:

“15.The defendants never made any more attempts to cross the boundary until the last Nigerian civil war.  They went secretly and removed 9 out of the 19 pillars which marked the boundary and started once more to encroach on the plaintiffs’ side of the boundary.

17.The plaintiffs did not apply during the civil war to replace the missing pillars marking the boundary, owing to the scarcity of diverse materials at the material time.

18. The defendants, their peoples, their agents and/or servants as from the month of September, 1970, and in great number crossed the boundary and invaded the plaintiffs’ land committing diverse acts of waste and trespass on the land in dispute.

19.They have been constructing a motorable road on the land in dispute. They have destroyed many economic trees on the land.  They are constructing temporary huts on the land. They are trying to establish a market on the land in dispute.  They have farmed and reaped the economic tress on the land”.

These allegations were rejected by the learned trial Judge who went on to 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”.

The learned counsel for the appellants canvassing grounds 2 and 3 before us submitted that since it was apparent on the face of Exhibit “B” that it was the plan to which the declaration granted by Reynolds J., in Exhibit E was tied the learned trial Judge erred in his failure to give consideration and effect to the boundary delineated thereon.  While admitting that it was not the copy tendered in court at the hearing, it being the original copy deposited with the Director of Surveys from whose custody it was produced he submitted that in view of the judgment Exhibit E which was based on the boundary line established by the judgment Exhibit C, it was a relevant piece of evidence deserving of great weight.

We observe that the plan Exhibit B was admitted in evidence as plan counter-signed by the Director of Surveys in the custody of the Survey Department. It was not accorded its proper probative value.  It did feature in the consideration of the judgment delivered by the learned trial Judge, but its relevance to Exhibit E and this case was inadequately considered and wrongly assessed. We observe that it was not put in for identification, but was admitted as part of the body of evidence in support of the plaintiffs/appellants’ case. It was not just a blank paper.  It contains very important details and had it received adequate consideration, it could have been of immense assistance to the trial court in evaluating most of the relevant facts in this case. The appellants’ pleadings particularly paragraphs 12 and 13 of the Statement of Claim which reads:

“12.  The plaintiffs this time sued the defendants for a Declaration of Title, Damages and Injunction in respect of the land in dispute in the Onitsha High Court Suit No. 0/42/55 – Chief Sampson Okpaloka for Uga v. Chief Maduagugbue and 10 Ors. of Unubi.

13.   The defendants having denied completely entering the plaintiffs’ Ofia Iyi Uga land, the plaintiffs were granted a declaration of title to the said Ofia Iyi Uga. The said suit together with the plan No. EC/70/55 filed and used by the plaintiffs in the said suit in support of their claim and served on the defendants will be founded upon”.
attached great importance to it and gave it prominence.  Exhibit B is Plan No. EC/70/55.  It is headed:

“Plan showing land
Suit No. 0/42/55
Chief Sampson Okpalaoka & others of Umueze-Uga
Chief Maduagugbue & 10 Others of Etitinabo-Unubi
Onitsha Province”.

The Key (Reference) contains information which cannot be classified as irrelevant to the present subject matter in dispute.

Furthermore, the evidence of the 1st plaintiff on this issue explains the absence of the plan to which Exhibit E is tied. It reads:

“The defendants continued to respect the boundary until 1955 when they crossed the boundary and the plaintiffs sued for title damages for trespass and injunction and got judgment. This is the judgment in 0/42/55 tendered, admitted and marked Exhibit “E”.  I filed a plan during the hearing of that case and defendants were served with a copy of the plan.  I filed one with the Director of Surveys.  I got the original of this plan used in this case.  This original copy got lost during the war ……….. I subpoenaed the Director of Surveys to produce the copy filed with them”  (Underlining is ours).

In answer to the subpoena from court issued at the instance of the plaintiffs on the Director of Surveys, Martin Okpaloka, P.W.2 appeared and testified on oath as follows:

“I am a civil servant; Principal Technical Officer, Survey Department, Enugu.  I had a subpoena to produce a plan No. EC/70/55.  This plan was counter-signed by the Director of Surveys. This is the original plan. Tendered.  Mr. Okafor objects, submits the document is irrelevant.  Court: Plan is admitted and marked Exhibit ‘B’ only as Plan EC/70/55 which was counter-signed by Director of Surveys and in custody of Survey Department”.
The connection between Exhibit E and Exhibit B was therefore complete.

It was not pretended that that was the copy used at the hearing.  The copy used, according to the evidence, got lost during the last civil war. We note that it was not admitted and could not have been so admitted as plan received in evidence in the 1955 case – but it has been received in evidence as plan filed with the Director of Surveys and on the evidence of the appellants that it was a copy of the plan filed and tendered in the 1955 case, the original being lost and Notice to Produce having been served on the defence to produce copy served on them in that case (there was no denial be it noted of service of Notice to Produce on them) its evidential value ran high.  Furthermore, it was referred to by the defence surveyor (D.W.1) in his evidence when he gave evidence as the details of its contents.  On the principle laid down in the case of Irish Society v. Derry 8 ER 1561 at 1575 (XII Clark & Finnelly 668) this is evidence which the learned trial Judge could have afforded its proper probative value to effect the purpose for which it was pleaded and tendered.

Lord Brougham in his judgment in the above case at page 1575 observed:

“The main error was that they seemed to confound the purpose for which evidence was tendered and admitted with the admissibility of that evidence.  The evidence tendered to prove any point may be perfectly inadequate to prove that point.  It may be such that if the learned Judge put it to the jury as sufficient proof, his direction to them upon that point might well be a subject of exception.  Yet the same evidence might be perfectly well admitted and received for such purposes to which it was strictly and correctly admissible”.

Since the learned trial Judge ruled against the objection of counsel on ground of irrelevance and in the light of the evidence that it is a copy of the one tendered in court which was lost in the last civil war, the learned trial Judge should not have dismissed the plaintiffs’ case.  Moreso, as the previous judgments, Exhibit C by Manson J., in Suit No. 0/30/47 and Exhibit E by Reynolds, J. in Suit No. 0/42/55 touching the subject matter in dispute are in evidence.  We may pause here to refer to the relevant portions of Exhibit E.  It reads:
“With regard to plaintiffs’ claim for a declaration of title, I found that that issue had been settled in the plaintiffs’ favour by virtue of the judgment of Manson J. referred to above.  In the previous suit, the matter in issue was whether the line bounded by concrete pillars was the proprietary boundary between the parties as contended by the Uga people or whether it was some other kind of boundary (………….. or administrative) contended for by the Unubi people which did not necessarily imply ownership.  Manson J., in his judgment categorically disagreed with the contention of the Unubis and upheld that of the Uga and found as a fact that the boundary indicated by the cement pillars was a proprietary one between the parties.  

The Unubis in the present action have not denied that this finding of fact was in respect of the same boundary which the Uga people claim to be their present boundary.  In my opinion, this court is bound by the decision of Manson J., on this finding of fact as constituting res judicata and accordingly I grant the plaintiffs a declaration of title over that piece of land called Ofia Iyi Uga which is more particularly set out in the plaintiffs’ plan Exhibit 2 and verged yellow thereon …  I therefore hold that plaintiffs have failed to prove any trespass as alleged in their Statement of Claim and the claim for damages for trespass is therefore dismissed as must also be the claim for an injunction”.  (Underlining is ours).

This was delivered on 20th February, 1961.

Manson J., in his judgment in Suit 0/30/47 Exhibit C on 12th May, 1951, said inter alia:

“The plaintiffs – Unubi people – claim a declaration of title to all that area of land called “Aniagu” edged pink on the plan prepared by them in 1947 – Exhibit 1.  It comprises three areas – Akabo, Ogwedimdim, Akpata – but no separate point arises in regard to those three portions.  The defendants the Umueze – Uga people – claim that they own the land in dispute which is known to them as “Ofia Iyi Uga”.  They tendered their own plan Exhibit 5 which was prepared in 1944-1945 by a Surveyor, Ejike Chidolue, defendants’ 2nd witness.  This Surveyor was also asked by the plaintiffs to make a plan for them and the District Officer at Nnewi, Awka Division also requested him to make a plan showing the boundaries between the plaintiffs and the defendants.  He thus made two plans.  Each party was present when the surveyor made the separate plans.  

He then incorporated them in one plan of which Exhibit 5 is a certified copy.  The plaintiffs say they were dissatisfied with Chidolue’s plan,. Exhibit 5 and so employed their own surveyor, Jeremiah Ume (plaintiffs’ 2nd witness) to prepare another which is Exhibit 1.  A reference to Exhibit 1 and Exhibit 5 shows a line of pillars running east to west.  Exhibit 1 shows 16 pillars.  No.14 could not be found, but it appears as No. 16 on Exhibit 5 and no pillar appears between pillars 15 and 16.  If Exhibit 5 is right, another pillar should be there -No.18 in Exhibit 5.  Exhibit 5 shows 19 pillars.  Allowing for 2 pillars east of the road in Exhibit 1 and a missing pillar between Nos.15 and 16 on Exhibit 1 – corresponding to pillar 18 on Exhibit 5 and allowing 1 pillar east of the road (alleged to be removed) in Exhibit 5, one gets a line of 19 pillars on each plan.  The pillars run co-extensively with the northern boundary of the land in dispute edged pink in Exhibit 1 (plaintiffs’ plan) as far as pillar 13 and then to a point south-east of pillar 16.  In Exhibit 5 (defendants’ plan), the pillars follow the pink line exactly.  The yellow line on Exhibit 5 corresponds to the southern boundary edged pink on Exhibit 1.  The defendants’ claim that their boundary with the plaintiffs is the line of pillars as shown on Exhibit 5 and that the plaintiffs have unlawfully crossed the boundary and that the plaintiffs claim to have traditional boundary with the defendants at the southern line edged pink in Exhibit 1 and yellow in Exhibit 5 is quite incorrect.  The whole case turns on the question “What does the line of pillars represent”  … ……..
……………Fortunately, the court has before it contemporary records both official and judicial which leave no doubt in my mind that the line of pillars is the proprietary boundary between plaintiffs and defendants.  It is not disputed that they were erected in 1913……………..

On the evidence, it cannot be disputed that two administrative officers, Messrs. Sproston and Hunt chained the land and marked off points for the erection of the pillars.

It is quite clear from the evidence that Unubi and Uga people, before the line of pillars was demarcated in 1913, fought one another …………………….
……………………….  Defendants showed some reluctance at first to accept the line as they thought too much land had been given to the plaintiffs.  They finally however agreed to accept the District Officer’s line ………………..
…………………… A dispute there certainly was between plaintiffs and defendants’ people.  The boundary was fixed by consent; it was marked out on the spot by two administrative officers in the presence of both sides ………………………
………………. I dismiss the plaintiffs’ claim and find that the southern pink line in Exhibit 1 is not the traditional Unubi – Uga boundary and that the true boundary is the line of pillars 1-19 on Exhibit 5, defendants’ plan”.  (Underlining is ours).

We have set out the relevant portions of the judgment Exhibit C at length to give a vivid picture of the dispute between the parties, the questions posed, the issues raised by the pleadings and the evidence and the findings of the learned trial Judge.

The common feature in the two previous cases – the 1947 case, Suit No. 0/30/47 and the 1955 case, Suit No. 0/42/55 and this 1971 case, Suit No. 0/78/71 (now before us) is that they are all in respect of the land called “Ofia Iyi Uga”.
We are therefore unable to agree with the learned trial Judge in this assessment of the probative value of the previous judgments, exhibits C and E.

It appears to us that the learned trial Judge abandoned the true import of pleadings and the evidence before him for on the printed evidence his dismissal of the plaintiffs’ claim in its entirety cannot be justified.
Grounds 1, 2, 3, 4, 5 and 6 of the Grounds of Appeal can safely be dealt with under ground 1, “That the judgment is against the weight of evidence and that the learned trial Judge failed to give proper consideration to the case put forward by the parties”.The respondents’ counsel rightly in our view stated the pith of the matter when in his opening remarks he stated that:”This case hangs on the previous suits between the parties”.We appreciate the dilemma in which the learned trial Judge was placed when the plans to which exhibits C and E were tied were not placed before him.  He did not hide his dilemma when he said inter alia:

“In Exhibit ‘E’ the judgment in Suit 0/42/55, a survey plan to which that judgment was tied was mentioned therein as Exhibit 2.This survey plan was never tendered and without it, I cannot say what land was involved in that case although in Exhibit ‘E’ the land in dispute was called Ofia Iyi Uga. ………………… Reverting to the issue that cement pillars were” erected in 1913 to demarcate the boundary, it is admitted by Mr. Mbanefo, counsel for the plaintiffs that the court having decided in Suit 0/30/47 that a line of pillars formed the boundary of the land in dispute in that suit, the matter as to boundary line becomes res judicata.  I agree.  But although I was told by the 1st plaintiff that the boundary was chained and surveyed, no survey plan prepared for that purpose was tendered to show the area where the pillars were erected and also the direction of the pillars.  Did the line of pillars extend to the land now in dispute  The judgment in Suit 0/30/47 Exhibit ‘C’ about boundary pillars was tied to a plan said to be Exhibit 5 in that suit.  The plan was not tendered in the present suit and without it or the original survey plan alleged made in 1913, the question I have posed above cannot be correctly answered, and the issue of proving the boundary should have been at large if the plaintiffs failed to show that the decision in Exhibit C relates to the land now in dispute”.  (Underlining is ours).

Having so expressed his dilemma, we are unable to see how he came to accept Exhibit G Plan No. MEC/299/71 as the plan showing the area in dispute in Suit 0/30/47 and conclude that there has been no previous dispute over the land now in dispute as shown in plan No. EC/168/71 marked Exhibit ‘A’.  It is non-sequitur.  No such admission was made either in the pleadings or in evidence and in the absence of any such admission by the plaintiffs, plaintiffs’ plan determines the area of claim.

If only the learned trial Judge had applied exhibits C and E and given proper and adequate consideration to the evidence of the plaintiffs and plaintiffs’ 1st witness (P.W.1) relating to Exhibit B, he quite possibly would have come to the conclusion that the area in dispute definitely lay somewhere within the area south of the boundary marked by the 19 concrete pillars beginning from the Okigwe/Onitsha Road and running westward

Even at that, the evidence of the 1st D.W.. Mathias Chukwura (defendants’ surveyor) accepted by the learned trial Judge confirming the existence of a boundary marked by a line of pillars in part reads:

“I know the defendants. They employed me to make survey of land for them. I was shown the features.  I produced plan No. MEC/299/71; this is the copy of the plan.  No objection, admitted and marked Exhibit ‘G’.  I was shown plaintiffs’ plan Exhibit ‘A’.  I was asked to superimpose defendants’ plan on plaintiffs’ plan.  This is the superimposed plan No. MEC/591/73.  Plan tendered.  No objection, admitted and marked Exhibit ‘H’.  On examination, plaintiffs’ plan Exhibit ‘A’ and defendants’ plan Exhibit ‘G’ do not cover the same area”.
Under cross-examination:

“I went personally to survey the land and the defendants showed me the features.  I showed a line of pillars marked in yellow ………. I inserted in Exhibit G about 10 pillars.  The pillars were shown as the northern boundary of the land disputed upon.  The area verged pink is in dispute.  I showed all the pillars showed to me.  I did not see plaintiffs’ plan Exhibit ‘A’ until I finished my survey.  Exhibit A contains 19 pillars.  I did not inquire about 19 pillars …  If there are 19 pillars as on Exhibit A, the area in dispute will be south of the pillars”.  (Underlining is ours).

Exhibit G is of no probative value other than that of confirming the existence of a line of pillars forming the northern boundary of the land in dispute.  Also, the 1st defendant/respondent testifying in chief admitted that there exists a boundary marked by a line of concrete pillars and that ‘Ofia Iyi Uga’ is owned by Uga people.  His evidence in parts reads:

“I know of a place called Ofia Iyi Uga.  It is a forest full of swamps and streams.  It is situated beyond Akabo land.  Isuomaolare stream separate Akabo land from Ofia Iyi Uga. Ofia Iyi Uga is owned by Uga people…………..
…………….  We  Etitinabos are not laying claim to Ofia Iyi Uga.  Some pillars form the northern boundary of the land in Exhibit G.  Some Europeans put these in 1913.  The pillars started from Ekwulu town through Ezinifitte town to Etitinabo.  The last pillar is situated in Akabo land.  After the last pillar there is a sharp slope towards Agbura stream.  We were driven away by the British government when the pillars in Exhibit G were put.  It is not true that there were other pillars stretching beyond Akabo land stretching over the northern boundary of the land the plaintiffs are now claiming”.

The evidence of the surveyor (D.W.1) already set out above quite clearly put the area in dispute somewhere south of the line of 19 pillars running westwards from the Okigwe/Onitsha Road. It appears that the defendants forgot that one of the points canvassed before West African Court of Appeal in their appeal against the judgment in Suit 0/30/47 was that the line of pillars prolonged on either side of the land in dispute in that case.  They were claiming title to a defined area.  In this regard, de Comarmond, Acting Chief Justice, delivering the judgment of the court said at page 5 of Exhibit ‘D’:

“I would mention one of the points urged on behalf of plaintiffs against the decision of the trial court.  It was that the plans indicate that the line of concrete pillars is prolonged on either side beyond the area in dispute.  The submission on this point is that if it was a proprietary dividing line, it need not have been extended in that way.  The learned trial Judge did apply his mind to that submission and he remarked that one of the surveyors called before him had indicated the pillars on the other side of a certain road because he had been told they were there, he never saw them.  But granting that such extra pillars did exist, can it be said that the one and only conclusion that can be drawn from their existence is that the line must be an administrative one  I do not think so.  Several explanations are possible; one of them being that the line was continued in order to make clear what was the boundary between the Unubi on the one side and Uga or other people on the other side because the Unubis had the reputation of being troublesome.

After giving full attention to the submissions of learned counsel for appellants and carefully reading the record, I cannot reach any other conclusion than that there was ample evidence justifying the learned Judge’s findings.  In fact, I would go so far as to say that I do not see how he could have reached any other conclusion”.  (Underlining is ours).

We observe that these admissions of 1st defendant on oath before the learned trial Judge put the defendants’ case severely to test.  The admissions that a line of pillars forming the northern boundary in Exhibit G was put up by some Europeans (British government in 1913), that ‘Ofia Iyi Uga’ lies westward beyond Akabo from which it is separated by Isuomachare stream and is owned by Uga people, constitute sufficient evidence to warrant, in the absence of the evidence of the boundaries of the land to which exhibits C and E are tied, at least a non-suit.  

As a matter of fact, when considered along with the contention of the respondents before the West African Court of Appeal, as shown in Exhibit D, the admissions in our view could quite possibly earn a judgment in favour of the plaintiffs/appellants in this appeal.  Having failed to attach the proper probative value to exhibits C and E, it was impossible for the learned trial Judge to enter the judgment which the justice of the case demanded.  

Furthermore, we observe that he rejected Exhibit E as constituting estopel per rem judicata on the ground that it does not show that the action was in a representative capacity on the face of it and so does not bind the peoples of both parties.  But, we find that this is the exact opposite of what the judgment contains for the first four lines of page 1 of Exhibit E reads:

“The plaintiffs in this case are the people of Umueze Quarter of Uga and the defendants, the people of the Etitinabo.  I shall refer to them as the Uga people and the Unubi people respectively”.

We also observe that the Declaration of Title to Ofia Iyi Uga granted in Exhibit E to the plaintiffs was based on the finding of Manson J., in Suit No. 0/30/47, between the Unubi people and Uga people that a line of 19 concrete pillars marked the boundary between the land of the Unubi people and the land of the Uga people.  In any case, there was no appeal to the West African Court of Appeal against that judgment and it is not the function of the learned trial Judge to review the judgment.

On this point of representative capacity this court in the case of Mba Nta & Ors. v. Ede Nweke Anigbo & Anor. (1972) 5 S.C.156 at 174-175 (Coker, JSC., delivering the judgment) said:

“This clearly means that at all times the matter rests with the court with respect to the ambit of the order which it proposes to make.  It is absolutely impossible to sue every man, woman and child of a large community and where it is intended to institute legal proceedings against them, it is impossible to do otherwise than to name some of them as defendants to the action.  If those named care to do so, they may ask for a representation order.  If they do not, the court is entitled to give judgment according to the evidence and nature of the case.  If there are parties aggrieved as being caught within the case when they were not by name made parties thereto, they have a right of appeal under our constitution; and we think it is right to argue that it is not open to a defendant named on a writ to complain as is being done in this case that other persons apart from himself have been included in the scope of the judgment”.  (Underlining is ours).  (See also Dokubo v. Bob-Manuel (1967) 1 All NLR 113 at 121-122).

The learned trial Judge seemed to have adopted an attitude that unless the plan to which a judgment is tied can be produced, the judgment is of no probative value. That attitude in our view is erroneous and where it is impossible by any diligent search to obtain the plan tendered in the previous proceedings, other credible admissible evidence can be adduced to identify the land in question. Our attention was drawn to the case of Ajayi & Ors. v. Pabiekun & Ors. (1970) 1 All NLR 142 where the learned trial Judge accepted oral evidence in the absence of the plan as to the identity of the land in the previous case. We think there was sufficient evidence before the learned trial Judge from which he could have identified the boundary marked by the line of concrete pillars which separated appellants’ land from respondents’ land.

The only other ground we need deal with is ground 8 which objected to the defence of long possession and laches.It reads:

“That the defendants/respondents did not make out any defence of long possession or laches and the learned trial Judge was wrong to express the view that he was entitled to decline to grant the claim for injunction on the said defence.  The plaintiffs/appellants have at least since 1913 continuously taken steps against the defendants/respondents in order to enforce and preserve their rights over their land with respect to the established boundary between them and the defendants/respondents and the purported defence of long possession and laches are not available and cannot avail the defendants/respondents in the case”.
In the course of arguments on this ground, the learned counsel for the appellants drew our attention to the ceaseless effort of the Uga people to keep the Unubis out of their own side of the boundary and keep them within Unubi side of the boundary and that before these proceedings were initiated in 1971 they had taken the defendants/respondents to court in 1955 and obtained a declaration shown in Exhibit E.

Judgment was given in 1961. From 1961 to 1971 cannot be regarded as a long period since in the 1955 case, they gave no evidence nor was it adjudged that they were in possession.

These defences which are equitable remedies are open only to those who have no title in law to the land they occupy but have had undisturbed possession over a considerable length of time.
A number of authorities were cited to us by the learned counsel for the appellants on this matter. They all restated the principles governing entitlement to the protection of the equitable defences.
The defence as set up in paragraph 22 of the Statement of Defence reads:”The defendants deny paragraph 20 of the Statement of Claim and say that the plaintiffs are not entitled as claimed. The defendants will plead:

(a)Long possession;
(b)Laches and acquiescence
(c)Estoppel, and all other legal and equitable defences open to them”.

On this issue, the learned trial Judge accepted the position that if the claim had been proved the defence of long possession and laches would have been available to the defendants/respondents on which ground, he would have refused to grant the order of injunction.

We are, with respect, unable to agree with the learned trial Judge that the equitable defences of long possession and laches would have, in the circumstances of this case, been available to the defendants/respondents if the learned trial Judge had held that they were in trespass.
We may pause to restate the doctrine of laches by reference to the authorities for guidance.  In the case of Alhaja Kaiyaoja & 4 Ors. v. Lasisi Egunla (1974) 12 S.C.55 at 65, Dan Ibekwe, JSC., delivering the judgment of this court said of this defence of laches:

“It is hardly necessary to restate here the well-known fact that the equitable defences which are popularly known as ‘laches and acquiescence’ derive from the maxim ‘Delay defeats equities’ or ‘equity aids the vigilant and not the indolent’.  Delay which is sufficient to prevent a party from obtaining an equitable remedy is technically called “laches”.  But that does not mean that laches consists simply of mere lapse of time it must be coupled with the existence of circumstances which make it inequitable to enforce the claim”.

and on the defence of acquiescence, he said at page 68:

“The second case deals specifically with acquiescence.  As we have already stated, there can be acquiescence without delay.  Again, we consider that there is no better description of the doctrine of acquiescence than the one given by Fry, J., in Wilmont v. Barber 15 Ch D at p. 105 where he laid down the law as follows:

“It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view, that is an abbreviated statement of a very true proposition.  A man is not to be deprived of his legal right unless he has acted in such a way as would make it fraudulent for him to set up those rights”.

We may also refer to the case of Nwakobi & Ors. v. Nzekwu & Ors. (1961) All NLR  p. 445 where Bairamian, FJ., delivering the judgment of this court said of laches at p. 450:

“The equitable defence on which the Obosis rely is laches; it is not acquiescence in its proper legal sense, which implies that a person abstains from interfering while a violation of his legal rights is in progress.  I cannot do better than cite the passage from Lord Cranworth’s judgment in Ramadan v. Dyson, L.R. 1 H.L. 129, 140, 141 which was cited in AG to the Prince of Wales v. Collon (1916) 2 KB at p. 203:

“If a stranger begins to build on my land supposing it to be his own and I perceiving his mistake, abstain from setting him right and leave him to persevere in his error, a court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own.  It considers that, when I saw the mistake into which he had fallen; it was my duty to be active and to state my adverse title; and that it would be dishonest in me to remain willfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented.  But, it will be observed that to raise such an equity, two things are required: first, that the person expending the money supposes himself to be building on his own land, and secondly, that the real owner at the time of the expenditure knows that the land belongs to himself and not to the person expending the money in the belief that he is the owner.  For if a stranger builds on my land, knowing it to be mine, there is no principle of equity which would prevent my claiming the land with the benefit of all the expenditure made on it.  There would be nothing in my conduct, active or passive, making it inequitable in me to assert any legal rights”.
“Where the plaintiff is claiming a declaration of title of ownership based upon long possession then it is incumbent upon him to prove the nature of that possession in such a manner that the inference that he is exclusive owner may be drawn, but where, as in the present case, the plaintiff traces his title direct to one, whose title to ownership has been established or produces evidence of previous court declaration of title in his favour, it is not necessary that he should prove such acts of ownership.  If title has been so established, then the onus is upon defendant to show that his own possession is of such a nature as to oust that of the original owner and in such a case, the court by applying the rules of equity rather than those of strict native law and custom will decline to disturb his possession and will refuse a declaration of title in favour of the original owner.  Possession for some 3 or 4 years may have been obvious but it cannot by any straining of the authorities be held to be such long continuous and undisturbed possession with the acquiescence of the real owners that it would be inequaitable and contrary to natural justice and good conscience to eject the respondent and give possession to the appellant”.  (Underlining is ours).  (Mosalewa Thomas v. Reston Holder 12 WACA 78 at page 80).

Where an absolute owner of land brought an action for trespass against a person alleged to be in possession, all that the owner had to prove was his title and an intention to regain possession (Portland Managements v. Harte (1976) 1 All ER 225 at 229, Danford v. McAnulty (1883) App Cas 456 at 462).

When trespassers knowingly and unlawfully take possession of lands the defence of laches is not available to them or their successors in interests who persist in their original trespass (Nwakobi v. Nzekwu) (1961) 1 All NLR 445. Reasonable bona fide action is the sine qua non of the grant of equitable relief.
In the light of the admission of the defendants/respondents that plaintiffs/appellants are owners of Ofia Iyi Uga described by 1st defendant as lying beyond Akabo and that Isuomachare stream separates Akabo land from Ofia Iyi Uga, and that area having been delineated by the plaintiffs/appellants in their plan Exhibit A, the test laid down by this court in Ajiofor v. Onyekwe & Ors. (1972) 1 All NLR (part 2) page 527 should have been followed.  In that case, Coker, JSC., delivering the judgment of this court at page 536 gave the guideline or test as follows:

“An Order of Dismissal operates as an estoppel per rem judicatam and ipso facto, bars the losing party for all times from re-litigating the same subject-matter.  A finding that such a party is entitled to some, though not ascertained portions of the land in dispute is not consistent with an order of dismissal.  If a plaintiff fails in toto to prove his case, an order of dismissal should normally follow but where the failure was only due to a technical hitch, the evidence of the merits showing the entitlements of the plaintiff to the land claimed or portions of it and the defendants not being entitled to the judgment of the court, the interests of justice demands that such a plaintiff should not for ever be shut out from representing his case.  See the observations of the West African Court of Appeal in Uzenwame Nwakuche and Ors. v. Azubike & Ors. (1955) 15 WACA 46.  In similar circumstances, this court has directed an order of non-suit.  See Craig v. Craig (1967) HMLR 52; also Dada v. Ogunremi (1967) NMLR 182”.
Mr. G.N.A. Okafor, counsel for the respondents has urged this court not to interfere with the findings of facts of the learned trial Judge.  We have already stated above our observations about the failure of the learned trial Judge to assess and evaluate properly the evidence adduced before him.  Where there is such a failure, the Appeal Court seized of the matter on appeal becomes competent and is often required to interfere with the trial Judge’s findings of fact.  Recently, in the case of V.A. Lawal v. Chief Yakubu Dawodu & Anor. (1972) 1 All NLR (Part 2) 270 at page 286 this court adopted with approval, the principles on which a Court of Appeal acts given by Lord Thankerton in Watt or Thomas v. Thomas (1947) AC 484 at pp. 489, 490 followed in Fatoyinbo and Ors. v. Williams alias Sanni & Ors. (1956) 1 FSC. 87 when Coker, JSC., (delivering the judgment of the court) said:

“In the evaluation of evidence, we think it firmly established in our jurisprudence that a Court of Appeal ought not except in exceptional circumstances to interfere with what must be considered the outcome of a dispassionate consideration of the evidence by a Judge who saw and heard the witness give evidence.  The ascription of the probative values to evidence comes at a later stage of the whole process and it is also established that this is a matter for the Judge who saw and heard those witnesses give evidence.  Nevertheless, the area is one in which the Court of Appeal is at least equally qualified and competent and is often required to exercise jurisdiction in certain albeit exceptional circumstances.  A trial Judge, however learned, may draw mistaken conclusions from indisputable primary facts and may indeed wrongly arrange or present the facts on which the foundation of the case rests.  In those circumstances, it would be completely invidious to suggest that a Court of Appeal should not intervene and do what justice requires but should abdicate its own responsibility and rubber stamp an error however glaring”.

In Fatoyinbo and Ors. v. Williams alias Sanni and Ors. (1956) 1 FSC 87, the Federal Supreme Court observed on similar occasions as follows:

“The appeal is accordingly one on facts and the principles on which a Court of Appeal acts in such appeals are succinctly stated thus in the opinion of Lord Thankerton in Watt or Thomas v. Thomas:

(i)Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial Judge’s conclusion.

(ii)The appellate court may take the view that without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

(iii)The appellate court, either because the reasons given by trial Judge are not satisfactory or because it unmistakenly so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses and the matter will then become at large”.

These principles have also on 29th October, 1971 been restated by this court in the case of Paul O. Omoregbe v. Ehigiator Edo S.C.142/69 as follows:

“It is not the business of this court to substitute its own views of the facts for those of the Judge or tribunal that had heard and seen the witnesses, but if the Judge or tribunal has failed to make a proper use of the opportunity of seeing and hearing the witnesses or if from stated or uncontroversial or undisputable facts, inferences are shown to have been drawn which are wrong or are not supported by the evidence, then the Court of Appeal must in the interest of justice, exercise its own powers of reviewing these facts and drawing the appropriate inferences from them”.

The learned counsel for the appellants has satisfied us and argued rightly in our view that the trial Judge should have non-suited the plaintiffs on account of the 1st defendant’s admission that plaintiffs own “Ofia Iyi Uga” and the admission of the 1st defendant and his witness, D.W.1 of the existence of a line of pillars which, if 19 in number, brings the land in dispute as lying somewhere within the portion of land south of the area and covered by the decision of Manson, J. in Exhibit ‘C’ and Reynolds, J., in Exhibit ‘E’ the absence of the plans to which exhibits C and E are tied notwithstanding.

The result is that this appeal succeeds and it is allowed.  We make the following orders:

(i)The appeal is allowed and the judgment of Aseme, J. together with the order as to costs in Suit No. O/78/71 delivered on 15th July, 1974, is hereby set aside.
(ii)The plaintiffs are non-suited in respect of all the claims and this shall be the judgment of the court.
(iii)The plaintiffs shall pay the costs of the defendants in the court below, assessed at N150.00.  The respondents shall pay to the appellants costs of this appeal fixed at N329.00.

Other Citation: (1976) LCN/2237(SC)

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