3PLR – ADIKWU V. NWOGU

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

ADIKWU

V.

NWOGU

FEDERAL SUPREME COURT OF NIGERIA

F.S.C.10/1961.

5TH FEBRUARY, 1962.

3PLR/1962/11  (FSC)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS

SIR LIONEL BRETT, F.J. (Presided)

JOHN IDOWU CONRAD TAYLOR, F.J. (Read the Judgment of the Court)

SIR VAHE BAIRAMIAN, F.J.

BETWEEN

1. ENYEAZU ADIKWU
2. WOBIA ADIKWU

(For themselves and on behalf of UMUADIKWU Family in UMUGWU UMUODO.)

AND

1. ONINA NWOGU
2. LUKE NWAMIGHINNA

(For themselves and on behalf of OBORIE Family in ASA-AMUHI UGWUNAGBOR.)

REPRESENTATION:

Chuba Ikpeazu, Q.C. (with him, Graham-Douglas) – for the Appel­lants.

A.M. Ukot -for the Respondents.

MAIN ISSUES

REAL ESTATE – DECLARATION OF TITLE -Identity of land claimed -Need for proof.

PRACTICE AND PROCEDURE – EVIDENCE – Claim to land – Doctrine of estoppel by conduct – Import.

REAL ESTATE – LAND LAW – Declaration of title to land – Identity of land must be estab­lished.

PRACTICE AND PROCEDURE – EVIDENCE – Evidence Act – Section 33(c) – When invoked.

MAIN JUDGMENT

TAYLOR, F.J. (Delivering the Judgment of the Court): The present appel­lants, who were plaintiffs in the High Court, sued the present respondents claiming:­

 

1. A declaration of title to all that piece of land known as “Nkpa­ Akalaka”.

 

2. £50 damages for trespass alleged to have been committed by the defendants.

 

3. An injunction to restrain further acts of trespass.

 

The appellants who are, and will henceforth be called, the Umuadikwu family, contend that the area in dispute was sold to their father Adikwu about 70 years ago by one Woke, Oriaku, the ancestor of the repondents who will hereafter be called the Oborie family, and that from that time onwards they have been in undisturbed possession until March 1959 when the mem­bers of the latter family trespassed on same. The Oborie family, on the other hand, contend that the land now in dispute has been the subject matter of a previous dispute in Suit No. 592/55 in the Ugwunagbor Native Court and that title to that area was awarded to them. The land, in that Suit, was refer­red to as “Avonkwu” by the plaintiffs. The Oborie family also deny the alle­gation of sale of the land to the Umuadikwu family. The Oborie family plead estoppel in paragraph S of the Statement of Defence in consequence of this Suit. The Umuadikwu family in their amended Statement of Claim, aver as follows in paragraph 9 in respect of Suit No. 592/55:­

 

“The Ugwunagbo Civil Suit No. 592/55 -Onina Wogu & anor. vs. Ihemere Nzogbu & anor. – was between different parties and neither the defendants nor their witnesses represented the plain­tiffs. The land involved was not known at any time to be a part of the land owned by plaintiffs.”

 

Perhaps I ought to mention that it is not correct in all strictness to refer to the respondents as the Oborie family seeing that paragraph 2 of the State­ment of Defence reads thus:­

 

“The defendants admit paragraph 2 of the Statement of Claim but deny that they are sued as representing other members of their family.”

 

I have, however, referred to them as such for easy reference and in view of the heading of the Writ and Statement of Claim. The learned trial Judge dis­missed the claim of the Umuadikwu family on grounds which I have sum­marised thus:­

 

1. That the southern boundary of the land claimed is indefinite, but that in spite of this, the land is for practical purposes the same as that awarded to the Oborie family in Suit 592/55, the proceedings to which were exhibit ‘O’ in this appeal.

 

2. That the Umuadikwu, though not the defendants in Suit 592/55, were sufficiently identified with them as to make the decision in that suit binding on them.

 

3. That the Umuadikwu and the Umuzogbu (or Nzogbu) are one in family and in ownership of land, and the Umuadikwu must have been aware of the action already referred to, for a member of their family, Imo Adikwu, gave evidence in those proceedings. 4. That the evidence given by the Umuadikwu family was of too vacillating and contradictory a nature to support a finding in their favour.

 

Three grounds of appeal were filed with the Notice of Appeal, and Mr. Ikpeazu, on behalf of the appellants, argued solely on the findings of fact and the law relating to estoppel as per Suit No. 592/55 (exhibit ‘O’). He con­tended:

 

1. That the proceedings in exhibit ‘O’ were between different par­ties in that the Umuadikwu family were never parties to it.

 

2. That Imo Adikwu and the original 2nd plaintiff in the suit, the subject matter of this appeal, are one and the same, but later on Counsel argued to the contrary.

 

3. That even if Imo Adikwu, who gave evidence in Suit 592/55 was the same as the deceased 2nd plaintiff in this appeal, it was not shown that when he gave evidence in 592/55 he knew about the area of land in respect of which he gave evidence.

 

As I have said in the summary of the findings of the learned trial Judge, he found as a fact that the Umuadikwu family were not the defendants in Suit 592/55, for the defendants were the Nzogbu, or Umuzogbu family. It would seem however, that the learned trial Judge applied the principle men­tioned by Their Lordships in the appeal Nana Ofori Alta !l and anor. V Nana Abu Bonsra II and anor., 1957 3 A.E.R. 559, where Lord Denning, delivering judgment, after citing a passage from the judgment of Lord Pen­zance in Wytcherley V Andrews 21871 L.R. 2 P. & D. 327 at 328, dealing with the doctrine of estoppel by conduct, went on to say at p.562 that:­

 

“The principle, as Lord Penzance said, is founded on justice and common sense. It may have been found appropriate in England only in special conditions. There is no reason, however, why in Africa it should not be applied to conditions which are found ap­propriate for it there, but which have no parallel in England. It seems to be the recognized thing in this part of West Africa for all persons with the same interest in a land dispute to range them­selves on one side or the other. Sometimes they apply to be joined as parties. On other occasions they regard the named party as their champion and support him by giving evidence. If he wins, they reap the fruits of victory. If he fails, they fall with him and must take the consequences.”

 

With respect to the trial Judge, I do not think that principle applies in the circumstances of the appeal now before us. Suit No. 592/55 was a case be­tween the Oborie family as plaintiffs and the Nzogbu family. In the course of that case, one Imo Adikwu, a witness for Nzogbu, gave evidence. Imo Adikwu was, on the finding of the trial Judge and on the concession of Mr. Ikpeazu during the course of his argument in this appeal, (though he later sought to argue against it) the same person as Uruakpa Adikwu, the original 2nd plaintiff in the case now on appeal. He died before evidence was taken in the Court below and therefore his evidence in Suit 592/55 was admissible in this Suit on appeal under S.33(c) of the Evidence Ordinance. He said that the land in dispute belonged to the family of the plaintiffs in that Suit. It should, however, be pointed out that this witness did go on to say that:­

 

“The plaintiff has cut boundary whereby they entered into Umuadikwu land”.

 

which would seem to support the contention of Mr. lkpeazu that in fact Umadikwu and Nzogbu or Umuzogbu had separate portions of land. Simi­larly the judgment of the Native Court supports this view where it is said by the Court that:­

 

“During the course of our inspection, the defendants showed four portions of land and showed us how it was shared between the defendants and people of Umuadikwu.”

 

The principle in Nana Ofori Atta II V Bonsra II does not apply to the circumstances in Suit 592/55 where the Umuadikwu contended that Umuadikwu was separate from Nzogbu, and owned land separately.

 

If the decision of the trial Judge were based solely on that, I would have been disposed to allow this appeal, but it is not, for the trial Judge went on to find as a fact that the evidence for the plaintiffs was unsatisfactory. In an ear­lier portion of his judgment he referred to the contradictions in the evidence of Wobia Adikwu the 2nd plaintiff and Enyeazu Adikwu the 1st plaintiff, the only two witnesses on the issue of the alleged sale of the land in dispute. In addition to these contradictions there is the evidence of the 5th witness for the Umuadikwu family who stated that:­

 

“lst plaintiff sold a portion of Akalaka land to my father for farming about 1929; price was 120 manillas or £2.”

 

The extent of this area alleged to have been purchased by this member of the Amapu family has not been defined, nor is it excluded from the area in respect of which a declaration of title is sought; so that the Umuadikwu fam­ily, even if they had successfully proved the sale by Woko Oriaku to Adikwu could not be granted the declaration to title they claim. I have considered the evidence in this appeal as a whole, and as I have said, Mr. Ikpeazu has not at­tacked this part of the judgment. I fully agree with the views expressed, by the trial Judge in that respect. I would therefore, for that reason, uphold the judgment and dismiss this appeal with costs which I would assess at twenty­ eight guineas in favour of the respondents.

 

BRETT, F.J.: I concur.

 

BAIRAMIAN, F.J.: I concur.

 

Appeal Dismissed.