RICHARD OBIEKEZIE & ORS. v.THOMAS NWEKE & ORS.
In The Supreme Court of Nigeria
On Wednesday, the 9th day of February, 1972
SC.216/1966
JUSTICES
GEORGE BAPTIST AYODOLA COKER Justice of The Supreme Court of Nigeria
UDO UDOMA Justice of The Supreme Court of Nigeria
ATANDA FATAYI-WILLIAMS Justice of The Supreme Court of Nigeria
Between
RICHARD OBIEKEZIE & ORS Appellant(s)
AND
THOMAS NWEKE & ORS Respondent(s)
RATIO
POSSESSION AND TRESPASS
“Where a plaintiff in possession of the subject matter of the dispute in a matter for declaration of title claims possession of the land along side trespass, the claim for possession presuppose that the plaintiff is not in possession”. PER COKER JSC.
G. B. A. COKER, J.S.C. (Delivering the Leading Judgment): From the pleadings of the parties it is manifest that the land in dispute called by the plaintiffs “Ezeanum” (see their plan No. MEC/274A/62- Exhibit “C”) and by the defendants “Agwu-Ogwugwu-Ede” (see their plan No. SE45A/60/63 – Exhibit “E”) was part of a larger piece of land communally owned by the large community of Ede people to which both the plaintiffs and the defendants belong. The case of the plaintiffs is that there was a partition as a result of which the land now in dispute fell to their own sub-families of Budom and Ezenin and that despite the partition the defendants, as individuals, had trespass on the holdings of the plaintiffs. On the other hand, the defendants whilst accepting that the land was at one time divided up into plots, said that the numerous allotments were left at large for occupation by whoever of the members of the Adazi-Ani community wished to build thereon.
At the trial, the learned trial Judge who tried the case heard all the evidence and preferred and accepted the version of the plaintiffs. On appeal before us, it was sought to show that the story of the plaintiffs was improbable and should not have been believed. We do not accept this contention for, in our view, not only was the story of the plaintiffs the mere probable, but also it was abundantly supported by evidence of a cogent nature. On the other hand the story of the defendants was rather improbable and to say the least was incoherent. We thought the learned trial Judge was right in concluding that the plaintiffs’ version was the more probable.
There is one observation we wish to make. The plaintiffs have asked for possession as well as claim damages for trespass and injunction. The claim for possession pre-supposes that they are not in possession whilst that of trespass postulates that they were in possession. The evidence accepted by the Judge shows that the plaintiffs were always in possession and that the defendants were in trespass. In those circumstances a claim for possession should not have been added to the writ.
In the circumstances the appeal fails and it is dismissed. The judgment of the High Court, Onitsha, is confirmed save for the claim for possession which is struck out. The defendants will pay the costs of appeal which we fix at 51 guineas.
Appearances
Chief D.O. Coker For Appellant
AND
G.E. Ezeuko For Respondent
