3PLR – AKUBUZE V. NWAKUCHE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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AKUBUZE
V.
NWAKUCHE
FEDERAL SUPREME COURT OF NIGERIA
4TH DECEMBER, 1959.
FSC 100/1959
BEFORE THEIR LORDSHIPS
SIR ADETOKUNBO ADEMOLA, F.C.J. (Presided)
LIONEL BRETT, F.J.
SAMUEL OKAI QUASHIE-IDUN, AG. F.J. (Read the Judgment of the Court)
BETWEEN
- MATHEW AKUBUZE
- CHUKUJI MBEREKPE (On behalf of Ossu Obodo)
- LEWIS OBODO
- WILSON ETITI (On behalf of Ossu Ogbalu)
AND
UZONWANNE NWAKUCHE (On behalf of Ahatu people)
MAIN ISSUES
APPEAL – Non-suit – When ordered.
LAND LAW – Declaration of title – Failure by Plaintiff to establish boundaries of land claimed – Proper order to make.
PRACTICE AND PROCEDURE – Pleadings – Defendant filing statement of Defence which introduces new issues – Duty of Plaintiff.
REPRESENTATION:
- Ejimofor with A. L. A. L. Balogun -for the 1st Appellant.
- I. Aseme – for the 2nd Appellant
G.M.A. Okafor -for the Respondent.
MAIN JUDGMENT
QUASHIE-IDUN, AG. F.J. (Delivering the Judgment of the Court):
In this case the plaintiff as the representative of the people of Abatu Village, Oguta, instituted an action against three persons as representatives of the people of Ossu Obodo claiming a declaration of title to a piece of land called Njachi and an Injunction. On the application of the plaintiff the Trial Court ordered the 1st and 2nd defendants/appellants (hereinafter together called “the 1st appellants”) to be substituted in place of the original defendants who had died.
After pleadings and plans had been filed by the parties, an application was made on behalf of Lewis Obodo and Wilson Etiti for an order that they be joined as defendants and to be allowed to defend the suit as representatives of the people of Ossu Obodo. On the 21st January, 1957, the Trial Court made the order accordingly and also ordered the applicants to file their statement of defence. The 3rd and 4th defendants/appellants (hereinafter together called “the 2nd appellants”) filed their statement of defence and served copies on the plaintiff and on the 1st appellants.
On the 24th April, 1957, the Trial Court gave leave to the plaintiff and the 1st appellants to file replies to the defence filed by the 2nd appellants, if the plaintiff and the 1st appellants wished to do so. It appears from the record of proceedings that no replies were filed by the plaintiff or by the 1st appellants.
In paragraph (2) of the statement of claim the plaintiff described the boundaries of the land claimed by him as follows:
The land in dispute is bounded on the north by the lands of Umu Nkwokomoshi and Udogronya, on the south by Amai Water Swamp, on the east by Nnebuku land and on the west by the Orashi River. It forms part of the wide expanse of land known and called Njachi and is particularly delineated and fully described in the plan filed in this action and edged pink.
The 1st appellants denied in paragraph 3 of their statement of defence that the land in dispute is known as Njachi. The paragraph reads as follows: The land in dispute is known and called Nkporo and not Njachi as is particularly described and delineated in the plan herein filed and verged pink, ………………….. the land is bounded on the north by the lands of Njachi (the land of Nkwesi people); on the south by the Amai Swamp which also forms the boundary of Nkporo and Obuofia (the land of Okorochukwu Ukachukwuj and Adisi Osai of Ossu Obodo); on the east by Aba Ebi and on the west by the Orachi River.
The 2nd appellants denied in their statement of defence (paragraph 3) that the land called Njachi claimed by the plaintiff covered the area as shown in the plaintiff’s plan and averred that the plaintiff, in an attempt to confuse the issues, had shown Njachi land to extend and include the land of the people of Ossu Ogbahu known as Nkporo and partly surrounded by Aba Ugbonnama and Amai stream verged red in the plan filed together with the statement of defence of the 2nd appellants.
The plans filed by the plaintiff and by the defendants were tendered in evidence and marked as follows:- Plaintiffs plan as Exhibit P5, 1st appellants’ plan as Exhibit D3 and 2nd appellants’ plan as Exhibit D.A.3. On the pleadings, filed by the parties, the issues before the trial Court were:
(1) whether the land edged in pink shown on the plan Exhibit P5 and called Njachi is the property of the plaintiff;
(2) whether the land claimed by the plaintiff on the plan Exhibit P5 is the same as the land called Nkporo and described on the plan Exhibit D3 filed by the 1st appellants; and
(3) whether the land claimed by the plaintiff or any part of it is shown on the plan Exhibit D.A.3 filed by the 2nd appellants.
After hearing the evidence adduced by the parties the learned trial judge held in his judgment as follows:
Abatu as plaintiffs have satisfied me that they are the owners of the land in dispute and are entitled to the declaration which they seek subject to the rights of Ossu Ogbahu (the 3rd and 4th defendants) as described in this Judgment. There will be an injunction against the 1st and 2nd defendants. There will be no order for injunction against the 3rd and 4th defendants.
Against this decision the two sets of defendants have appealed.
On behalf of the 1st appellants the following grounds of appeal have been argued, namely:
(1) The decision is unreasonable, unwarranted and cannot be supported by the evidence;
(2) There was no clear evidence by which boundaries or extent of disputed land could be determined so that plaintiff ought to have been non-suited at the close of the case;
On behalf of the 2nd appellants the following grounds of appeal have been argued, namely:
(1) The learned Trial Judge misdirected himself in finding for the plaintiff after a clear evidence that the boundaries of the land claimed were not proved by the plaintiff;
(2) The learned trial Judge misdirected himself in finding for the plaintiff without any clear evidence that the land ’Nkporo’ belongs to the plaintiff, and
(3) That the decision is unreasonable and unwarrantable having regard to the weight of evidence.
I will now deal with the 2nd ground argued on behalf of the 1st appellants and the 1st ground argued on behalf of the 2nd appellants. The two grounds taken together are that the learned trial Judge erred in giving judgment for the plaintiff as the plaintiffs evidence did not clearly show the boundaries of the land claimed by him.
In support of the two grounds of appeal, both Counsel have called our attention to the evidence given by the plaintiff when describing the boundaries of the land claimed by him. It is clear from the plaintiffs evidence that his description of the boundaries did not agree with the boundaries shown in Exhibit P5, but I do not think that it is necessary to consider that evidence in detail in this judgment for reasons which will be obvious later.
However, it is necessary to point out that the litigation which was between the 3 parties did not present issues which could be easily solved. The dispute, as has been pointed out earlier in this Judgment, was originally between the plaintiff and the 1st appellants representing their respective people. After pleadings and plans had been filed by the original parties, the 2nd appellants were joined as co-defendants. They also filed a statement of defence and a plan. In the plaintiff’s statement of claim, no mention was made of the 2nd appellants (Ossu Ogbahu), neither is it shown on the plan Exhibit P5 filed by the plaintiff that the plaintiff has any boundary with the 2nd appellants, apart from a village shown on the south of the pink area in Exhibit P5 as Ossu Ogbahu village. The plan Exhibit D. A.3 filed by the 2nd appellants show that the northern portion of the land in that plan claimed by the 2nd appellants as a portion of their land is also claimed by the plaintiff. In their statement of defence the 2nd appellants averred that Njachi land claimed by the plaintiff did not extend to and include the land of the 2nd appellants called Nkporo. In paragraph 4 of their statement of defence the 2nd appellants also referred to an action instituted by the plaintiff against the people of the 2nd appellants (Ossu Ogbahu) in 1941 which was dismissed. In paragraph 5 of the statement of defence the 2nd appellants also denied the allegation in the plaintiffs statement of claim (paragraph 5) that Nzerem Ugboma was their ancestor or that Nzerem Ugboma had any transaction as a representative of the people of the 2nd appellants with the plaintiff’s people. The statement of defence of the 2nd appellants introduced new issues into the dispute, and it is my view that the plaintiff should have filed a reply to that statement of defence. No application was made by the plaintiff to file a reply to the defence although the plaintiff, and the 1st appellants were given leave to file replies if they wanted. Although none of the appellants filed a counter-claim, and therefore was not entitled to a declaration in respect of the portions of the land claimed by each, I think, however, that to enable the Trial Court properly to adjudicate on the case the plaintiff, at any rate, should have filed a reply to the statement of defence filed by the 2nd appellants. The filing of the reply would have necessitated an amendment of the plaintiffs plan and would have admitted or denied the allegation that the plaintiff had claimed the northern portion of the land claimed by the 2nd appellants. It is also my view that it would have enabled the learned trial Judge to ascertain from the evidence and from the plaintiff’s plan so amended the actual boundaries of the land he claimed. This omission has, in my view, brought about a discrepancy in the evidence of the plaintiff as to the boundaries of the land claimed by him, particularly after the 2nd appellants had introduced new issues both as to tradition and boundaries into the dispute.
For the reason I have given in this Judgment, I think that the 1st appellants and the 2nd appellants have succeeded on the two grounds argued by them. It is, therefore, unnecessary to deal with the ground argued on their collective behalf that the Judgment is unreasonable, unwarranted and cannot be supported by the evidence.
It now remains to consider what order this Court should make as the 1st and 2nd appellants have succeeded in satisfying us that the plaintiff was not able to establish the boundaries of his land as against them. Learned Counsel for the 1st appellants has submitted that the appeal should be allowed and the plaintiff’s claim dismissed. He has referred to the following cases:
Darko v Agyakwa 9 WACA 163
Barawa v. Ogunkola & ors. 4 WACA 159
Alade v. Dina 17 NLR 32
Kodilinye v. Mbanefo Odu 2 WACA 336
1 have considered the authorities, but it is my view that the issues raised between the parties, and in particular between the plaintiff and the 2nd appellants, were not properly pleaded before the Trial Court and that the Court could not have properly adjudicated on the case before it, having regard to the nature of the plans filed by the plaintiff and by the 2nd appellants. In Darko v. Agyakwa (supra) referred to above, where the plaintiff in a claim for a declaration of title used a plan not drawn to scale or orientated, and where his evidence was vague and contained inconsistencies between it and the statement of claim which made it impossible for the Court to determine the position of the boundaries of the land, the Court of Appeal held that the plaintiff’s claim should not be dismissed but that he should be non-suited with liberty to bring a fresh action.
In the present case, I think the ends of justice would be met by ordering a new trial. The appeals are accordingly allowed, the judgment of the Trial Court is set aside and an order is made for a new trial. It is directed that the parties be granted leave to file amendments or additional pleadings and plans.
Appeal allowed. New trial ordered.
