NWOKAFOR & ORS V. UDEGBE & ORS

• Pages: 77-80

NWOKAFOR & ORS V. UDEGBE &

ORS

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77

Appeal dismissed.

5

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NWOKAFOR & ORS V. UDEGBE & ORS

1.

ANACHUNA NWOKAFOR

10

2.

ONONIWU

3.

CHIKWUMA MGBE

APPELLANTS.

4.

CHINWEUBA OBIEZE

5.

OKONKWO NNEUKWU

6.

EFOBIRI EGNUNONU

15

V.

1.

NWANKWO UDEGBE

2.

AJUTUORA OBEGBUNA

3.

ADOLBERT ASOKWU

RESPONDENTS

4.

AKAIKE IKEGBUNA

20

5.

NWAWUBE UDEOZO

SUIT NO. FSC 440/1961

FEDERAL SUPREME COURT.

BRETT,

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Ag. C.J.F.

TAYLOR,

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C.J.

25

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COKER,

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C.J.

19th February, 1963.

Land Law - Practice and Procedure - Claim for declaration of title - Onus on

plaintiff, who must succeed on strength of his own case - Dismissal of claim

30

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not a decision in defendants' favour - Real Property.

ISSUE:

1.

Can a plaintiff in an action for declaration of title succeed on the weakness of

the defence's case?

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FACTS

The crux in this case was whether the plaintiffs were right in alleging that the

land north of the Nkissi stream was theirs as far as a certain line of trees are con-

cerned. The defendants alleged that in 1908 a District Officer named Douglas, in

proceedings between them and a sister family of the plaintiffs', awarded the land

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to them as far as that line; the award (insufficiently proved) was, in the Judge's

view, in any case not binding on the plaintiffs either as res judicata or on the ground

of estoppel by conduct. The defendants alleged that since 1908 they had been

using the land in dispute. The Judge said the evidence for both sides was unre-

liable, that for the defendants more so, but on user he regarded as "a little more

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probable" the plaintiffs' case that the defendants first crossed the stream six years

before the trial, and "in the absence of better evidence" it seemed to him that there

were "some grounds for accepting the plaintiffs' case.

HELD:

1.

The award was not binding on the plaintiff's rather because

it

was not shown

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that the District Officer was acting in a judicial capacity or as a judicial arbitrator:

but the Judge, having regard to his view of the plaintiff's case, should not have

granted them a declaration of title, but dismissed their claim.