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21ST MARCH, 1963.

SUIT NO.FSC 60/1962

3PLR/1963/14 (FSC)












CIVIL ACTIONS – Appeals – Claim for declaration of title.

TORT – Damages for trespass – Injunction – cross-action – Both suits consolidated.

PRACTICE AND PROCEDURE – Evidence – Admissibility in evidence of unregistered document to show exercise of action of ownership – Legislation. – s.15 of Land Registration Ordinance cap.. 99.



Mr. A. Obi Okoye and (Mr. C.C. Onoh) for the Appellant.

Mr. A.N. Aniagolu for the Respondent.


TAYLOR, F.J.: The case now on appeal before us consisted of two suits which were consolidated in the High Court of Enugu, to wit E/32/57 and E/28/58. The former yeas an action brought by the people of Ubiekpo village of Abor Town against Umuavulu village people also of Abor Town for:


  1. Declaration of Title to land known as “Agu Ubiekpo Abor”.


  1. £200 general damages for trespass committed by the defendants in or about May, 1957.


  1. An injunction to restrain further acts of trespass.


The latter was an action brought by the people of Umuavulu of Abor against the people of Ubiekpo Abor, in which the plaintiffs sued for:


(1)     A declaration that the land in dispute and which they call “Agu Abor’ is the communal land of the peoples of both villages.


(2)     An injunction restraining the defendants from using the land as sole owners.


The major Issue between the parties is therefore whether the land in dispute, by whatever name it may be called, is the property of the Ubiekpo people as contended in E/32/57 or is the joint property of both peoples of Ubiekpo and Umuavulu villages, as contended in E/28/58 by the respective plaintiffs. Both parties called witnesses in proof of this contention but there are three matters which stand out in the evidence led in this respect and they are:


(i)      The undisputed fact that one James Igwe of the village of Ubiekpo had at least since 1935 (some 22 years before the action now on appeal was brought) been solely responsible for the management of the land in dispute.


(ii)     That a portion of the land in dispute was acquired in 1923 by the Forestry Department, and surrendered back in 1948, and that all the correspondence in evidence in respect of this acquisition and surrender was between the Elders of Ubiekpo village or James igwe on the one hand and the Acting Chief Conservator of Forests on the other.


(iii)    Other correspondence and/or agreements were tendered as showing acts of ownership exercised by the people of Ubiekpo or as admissions made by some of the people of Umuavulu against interest.


The appellants contend that in all matters in which James Igwe acted, he did so for and on behalf of both villages and that the subsequent surrender was made from and to both villages. The learned trial Judge, after hearing the evidence led at the hearing, gave judgment for the people of Ubiekpo for title, awarded £100 damages and granted an injunction against the people of Umuavulu. The action of the people of Umuavulu was dismissed.


Learned Counsel in arguing this appeal before us made the following submissions:


(1)     That exhibit “R”, the proceedings pleaded in paragraph 10 of the Statement of Claim in Suit E/28/58, an action taken in respect of land in dispute by the people of Abor, i.e. both parties to this Suit now on appeal, was never considered by the trial Judge in his judgment.


(2)     That the exhibits D and E, agreements or leases, were not admissible in evidence as they were not registered as provided for by s. 15 of the Land Registration Ordinance, Cap. 99, Vol. 4 Laws of Nigeria.


(3)     That no award of damages should have been made in so far as the alleged entry by the Umuavulu people on the land in dispute was in May, 1957, whereas the trial Judge based his award on an alleged admission of entry in 1956.

(4)     That on the facts there was no independent witness called by the Ubiekpo people; that the agreement in connection with the acquisition of land and its surrender by the Forestry Department was not put in evidence, that the trial Judge failed to consider the importance of the respective names given to the land in dispute by both parties, and that as a result judgment should not have been entered for the Ubiekpo people.


The third ground of appeal as contained in the Notice of Appeal was abandoned by learned Counsel for the appellant. The only grounds on which we called on Mr. Aniagolu for the respondents to reply were those covering the first and fourth submissions as set out above, and before dealing with those two points I shall briefly dispose of the second and third submissions. The agreements referred to in the second submission were tendered by plaintiff witness 2 without any objection by Counsel for the Umuavulu people and were tendered in my view as showing acts of ownership exercised by the Ubiekpo people and do not come within the provision of s. 15 of Cap. 99 of the Land Registration Ordinance, which provides that:-


“No instrument shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered in the proper office as specified in section 3.”


There is a proviso which is not relevant for the purpose of this appeal.

Interpolating the definition given in s. 2 of the Ordinance for the word “instrument”, s.15 reads thus:


“No document affecting land in Nigeria whereby one party (hereafter called the grantor) confers, transfers, etc. any right or title to land, etc. shall be pleaded or given in evidence in any Court as affecting any land unless the same shall have been registered………”


This section obviously, by its very wording contemplates that an instrument, that is a document affecting land by conferring or transferring rights over land and which has not been registered may be pleaded or given in evidence provided the object of its use is not to affect land. It may therefore in my view be used to show the exercise of an act of ownership or as a declaration against interest made by one of the parties to the suit. I am aware that the consolidated suits now on appeal are brought by and against parties in their representative capacity, and the Agreement under review, though executed in a representative capacity on the side of the Ubiekpo people, was executed by individuals of the Umuavulu village. This, however, does not affect its admissibility as in law each member of the Umuavulu village is represented in the section, and as far as the document Exhibit E is concerned, Thomas Obodo Eze a party to the document, was also the 9th defendant witness in the action the subject matter of this appeal. The case of Jammal v. Saidi and Fatuga, 11 N.L.R. 86 is distinguishable from this case on appeal in that in the former, a claim by the plaintiff for recovery of possession of a shop by virtue of a deed of Lease from the owners duly registered under the Land Registration Ordinance, one of the defendants resisted the claim by virtue of an Agreement of Lease (unregistered) granted by the first defendant. The agreement affecting land and unregistered was admitted in evidence and used by the trial Judge to defeat the plaintiff’s claim based also on an agreement affecting land but registered. It was an instrument pleaded and given in evidence as affecting land and came within the provision of s.15 of the Land Registration Ordinance. This ground of appeal under consideration is without substance.


On the question of damages, our attention was drawn to the following passage in the judgment of the trial Judge, where he says:


‘The Umuavulu admitted going on this land in 1956, and cutting down trees which in my considered opinion was an act of trespass. There is no evidence before me as to the extent of other damage done to the trees planted. I suppose this is not necessary as the second part of the plaintiffs’ claim is for general damages not special damages.”


We were also referred to the evidence of Paul Okpokwu, 7th defence witness, who made the admission of going on the land in 1956 in these words:


“I have a plot on this land in dispute. I used to accompany my father to farm on this land in dispute. I got the plot in January, 1956. I did not get i from anyone. I went to the spot where my father used to farm and started building there.”


The evidence and the case of the Umuavulu people, when taken as a whole, is to the effect that ‘we admit going on the land, in fact we say we have always been using this land in commor, with you.” Once, therefore, the trial Judge has found that the Ubiekpo people are the owners of the land and that the Umuavulu people were on the land in 1956, that they cleared the land and some built houses, that in my view is sufficient to maintain an action for trespass and a claim for general damages, as contained in the Statement of Claim (in or about May, 1957). This ground of appeal must also fail.


I now turn to the main ground of appeal dealing with the failure on the part of the learned trial Judge to direct his mind on the importance and effect of exhibit “R”. This exhibit was the record of proceedings in Suit No. 144/35, and the heading reads thus: “Igara Oba & 13 ors. of Abor v. Okoyi Ibenedu of Agbaenu-Charge: Having maliciously felled the complainants trees on their farm valued at £10. The accused were found guilty and sentenced to a fine of f0-10s or 3 months and ordered to pay £5 compensation to the Abor people.”


The present appellants plead in paragraph 10 of their Statement of Claim in Suit E/28/58 as follows:


“As far back as 1935 reports were reaching the people that strangers were trespassing and farming on the land. Both parties complained to the D.O. Udi, who advised that action should be taken against anyone found on the land. In 1935 one Okolie-Ibeneju a labourer at the Colliery was found working and cutting trees on the land. Action was taken against him in Ukana Native Court Suit 144/35 by Igara Oba on behalf of Abor.”


In reply to this the present respondents say, in paragraph 9 of their Statement of Defence in the aforesaid Suit, that:


“In answer to paragraph 10 of the Statement Of Claim the defendants agree that in 1935 complaint was made to the District Officer but maintain that the complaint was made exclusively by the Defendants who complained that prisoners from Enugu were cutting down their trees on the land. The defendants admit that in 1935 Okolie Ibeneju was sued in Ukana Native Court but maintain that the action was taken by the defendants.”


No specific reference was made to this Suit in the pleadings in E/32/57, and in the evidence adduced at the hearing the only references to it were brief and not in any way illuminating. This is what Jhmes Igwe said about it under cross-examination:


“I know one Okoli Ibeneju. He was a labourer in the Colliery. He was sued for entering into this land in dispute. One Aronejus from Ubiekpo sued this Okoli Ibeneju. One Igara Oba was not the one. I know one Igara Oba. He was a native Court Member.”


This is what the defendants’ witness, Joseph Ekoma, says in examination-inchief about the action 144/35:


“In 1953 we sued one Okoli Ibeneju for trespassing on this land. We sued him in Ukana Native Court.”


In the address of learned Counsel there is no mention of or reference to the proceedings in this suit, and it is therefore no wonder that the learned trial Judge did not consider it of sufficient importance to require speck treatment. I have been unable to find anything in the pleadings by way of admission by the respondents, or anything in the evidence at the trial including the admissible portions of exhibit “R” (i.e. the claim and Judgment) which in any way assists the appellants in this appeal.. There is nothing to show from which village in Abor, Ubiekpo or Umuavulu, Igala Oba and the 13 other complainants in 144/35 came, nor is there a plan In evidence to show the area to which the action related. I can find nothing of such importance in this exhibit as to require the trial Judge to give it specific mention in his Judgment. It does not carry the case one way or the other.


Finally, on the facts of.the case no argument of any substance has been adduced by the appellants’ Counsel to move me to disagree with the findings of fact of the trial Judge who saw and heard the witnesses and I decline from so doing. I might add in passing that when one looks at the plans in evidence one finds on all of them the camp of the respondents’ people – Ubiekpo’s Camp, with several buildings thereon on land adjoining the land in dispute as shown in exhibit “A”. The appellants’ village is not shown on the plan at all and be it noted that on exhibit “A” the land in dispute, including the camp of the respondents’ people, is bounded on the East by the Akalama Ogbeyanu Stream, on the South by the Ekwula River, on the West by the Milisiogba Stream, and on the North by the land of Amankwu. No roads are shown on any of the Plans as leading to the appellants’ village from the land in dispute. It seems to me that when all this and the evidence of acts of ownership exercised by the respondents’ people accepted by the trial Judge are taken into account there could be no other conclusion than that reached by the trial Judge.


The appeal must in my view fail and is dismissed with costs to the respondents which I would assess at 25 guineas.


Brett, F.J.: I concur.


Coker, Ag. F.J.: I concur.


Appeal dismissed.



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