VINCENT OKORIE AND 3 ORS V. PHILIP UDOM AND 3 ORS
In the Supreme Court of Nigeria
February 9, 1960
Case Number: FSC. 326/1959
ADEMOLA, CHIEF JUSTICE, NIGERIA
HUBBARD, JUSTICE, SUPREME COURT
TAYLOR,JUSTICE, SUPREME COURT
ANYANOSO UDEMBA (For themselves and on behalf of the people of Egwe)
PHILUP UDOM NNANI
UZOAKO RICHARD O.NZIMIRO
WHERE ISSUE OF TRESPASS ARISES
“…The case Abotche Kponugbo and others v. Adja Kodadja, decided in the Privy Council and reported in 2 W.A.C.A. 24 (and a host of other cases following it) clearly establishes that where there is a claim for trespass coupled with injunction, it is incumbent on the Judge to consider the question of title to the land or the exclusive possession of it…”
ADEMOLA, C.J.F (Delivering the Judgment of the Court):
The appellants have appealed against the judgment of the High Court, Aba, dismissing their claims against the respondents for trespass and injunction.
The first respondent in the appeal was originally sued by the appellants for £500 damages for trespass to portion of a piece of land called Ayagbagba or Ayalagba, which was demarcated and edged purple in a plan (Exhibit P1) filed by them; they also asked for injunction to restrain the first respondent from further trespass. The appellants sued in a representative capacity as representing the people of Egwe. Before pleadings were ordered, however, the second, third and fourth respondents sought for and obtained leave of court to join as defendants, stating that they represent Oguta people, who are owners of the land and who authorised the first defendant/respondent to go on the land and to build a school on portion of it.
Pleadings were later filed. The appellants, at the trial, contended that they own the land in dispute and that it is portion of the vast area of land upon which they, as a community, farmed; that they also own a few scattered houses on the land, which they alleged the respondents destroyed.
The respondents not only claim the land in dispute, but also maintain they own the land on which the Egwe people settle and live; that the land was given to them on payment of yearly tribute and that gradually the appellants have extended their holdings westward until they have almost come to Oguta village and town itself; that as the appellants were not disturbed in their encroachment upon Oguta land they stopped paying their yearly tribute.
The learned trial Judge, in his consideration of the facts before him, came to the conclusion that the traditional evidence given by the respondents as to their ownership of land cannot be true, he disbelieved their evidence that Oguta gave the site to Gwee to settle. It was important, however, for the plaintiffs/appellants to define the boundary of their land with Oguta if they were to succeed. It is correct that a defined and recognised boundary with Oguta would be the only means of ascertaining whether the Oguta people have crossed over to the land of Egwe on its western boundary.
The learned Judge found on this point that both sides have not been able to fix a boundary line, and that the plaintiffs/appellants were not at any time in exclusive possession of the area which they alleged has been trespassed upon; and that no definite boundary was ever established between them and Oguta. He disbelieved the appellants that they built houses and made farms in the area, which were destroyed by Oguta.
A cursory glance at the plan (Exhibit P1) filed by the appellant shows that Egwe settled in the eastern direction and made farms westwards of their settlements. Oguta, on the other hand, settled in the Western portion of the land, around which they built houses and farms. There appears to be a large tract of land between the two settlements, and it would appear Egwe is not claiming the whole tract of land to the west up to Oguta town.
The learned trial Judge found that both sides have been dealing freely with this unoccupied land unmolested, and neither side could now claim more than Is in their actual occupation or possession. There was, to my mind, ample evidence before the learned trial Judge to have come to this conclusion, and I see no reason to disturb this finding.
Of the three grounds of appeal filed, objection was taken by Counsel for Respondents to ground (c), which was one of misdirection, on the ground that in the three instances quoted the particulars of the various misdirections were not given. It has been pointed out from time to time that merely quoting portion of judgment, without showing in what respect the Judge misdirected himself, is worthless. Counsel was not allowed to argue this ground of appeal, and it was accordingly struck out.
The main issue raised, therefore, in the appeal is that the learned trial Judge did not direct his mind to the evidence given by an Oguta man in a case in 1916 (Exhibit P4) between Egwe and another clan known as the Mgbidi, that the boundary of Egwo is as shown in a plan tendered in evidence in that case. It was submitted that by this evidence the respondents are estopped from claiming any land beyond the boundary postulated in that case.
Counsel referred to us the evidence of one Okachuku, who claimed to be an Oguta man, and to the judgment of the court in the case (Exhibit P4); but counsel was unable to show us in the proceedings that the witness described the boundary between Oguta and Egwe. In any case, the dispute was between Egwe and Mgbidi, a community to the east of the Egwe settlements, as to the boundary between Oguta and Egwe. In any case, the dispute was between Egwe and Mgbidi, a community to the east of Egwe settlement, as to the boundary between them, in which apparently Oguta derived no interest. In the judgment to which counsel referred, the Resident, Mr. J.C. Maxwell, who heard the case, said as follows:
‘….the court further finds that plaintiff, on behalf of Egwe people, has established his title to that land bounded by the Obana Stream on the north, and
Ohamini on the south, the telegraph line on the east and the unspecified boundary with Oguta on the west, as indicated on the plan submitted by the plaintiff ….”
Counsel for the appellant argued that the plan referred to in the above judgment is the plan (Exhibit P5) in this case. The learned Judge in the court below made it clear in his judgment that the plan in the 1916 case was not produced by counsel before him, and it could not be Exhibit P5. It appears to me that even if Exhibit P5 were the plan in the case, it would make no difference to this appeal. The Resident, in his judgment to which I have referred, made it clear that he was not deciding the boundary between Egwe and Oguta, which he called “Unspecified Boundary.” It is still the case that the plan (Exhibit P5), which at best is not binding on Oguta, does not specify any boundary between Oguta and Egwe. It is clear that the 1916 case (Exhibit P4) is not binding on Oguta because they were not parties to it; it was a case purely to establish the boundary between Egwe and Mgbidi, which is to the east of the plan Exhibit P1. Counsel for the appellant further argued that as the case before the learned Judge was merely a claim for trespass, it having been established that the appellants were in possession of the area complained of in the writ (edged purple in the plan Exhibit P1), it was unnecessary to consider the question of title to the land, and the appellants were entitled to judgment, without establishing title, If their possession was disturbed. The learned Judge indeed considered the issue of title to the land. I am of the opinion that he was correct in doing so, since the claim before him was one not only for trespass but also for an injunction. The case Abotche Kponugbo and others v. Adja Kodadja, decided in the Privy Council and reported in 2 W.A.C.A. 24 (and a host of other cases following it) clearly establishes that where there is a claim for trespass coupled with injunction, it is incumbent on the Judge to consider the question of title to the land or the exclusive possession of it.
The evidence regarding the boundary between the two contestants shows, as the learned Judge says, how fluid the boundary is. As for possession, Oguta and Egwe lay claim to possession of different portions of the area. But what is clear, and as found by the learned Judge, is that the appellants have failed to discharge the onus which rests upon them to prove the boundary of their land with the respondents or to prove exclusive possession by them of the portion edged purple in their plan (Exhibit P1), which is necessary for the remedy they sought. They are entitled, in my view, to have their claim dismissed.
I would therefore dismiss this appeal, with costs assessed at thirty guineas.
HUBBARD, AG. F.J
TAYLOR, AG. F.J.