OKONKWO V. KPAJIE

• Pages: 349-370

OKONKWO V.

KPAJIE

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349

OKONKWO V. KPAJIE

1.

SILAS OKOYE OKONKWO

2.

CHIEF ENODA NGWUOGWU

3.

CHIEF NWOFIA UDEMUO

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APPELLANTS

(For themselves and on

behalf of the people of

UMUSIOME NKPOR)

V.

1.

CHIEF AGOGBUA KPAJIE

2.

LAWRENCE AGULEFO

3.

RICHARD ACHILUGO

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RESPONDENTS

(For themselves and on

behalf of the people of

IKENGA OGIDI)

APPEAL No. SC. 27/1987.

SUPREME COURT OF NIGERIA

UWAIS,

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J.S.C.

KAWU,

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J.S.C.

NNAEMEKA-AGU, J.S.C.

WALT,

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J.S.C.

AKPATA,

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J.S.C.

28th February, 1992.

Appeals - Concurrent findings of fact - When the Supreme Court may interfere.

Evidence - Evidence given in a previous case - How treated in a later case - Exception to

the admissibility of such evidence - Section 34(1), Evidence Act - Pleadings in an earlier

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case being admitted in subsequent proceedings between same parties - How treated -

Estoppel by conduct - When applicable - Pleadings - When issues may arise

in.

Land Law -

Grant of title to a party who failed to prove the precise area to which his title

relates - Propriety of - When the court may grant a declaration in favour of the plaintiff

where he fails to prove the area he claims - Demarcation of boundary - Principles

applicable thereto.

Legal Practitioner -

Counsel - Powers and status of in the conduct of a client's case -

Whether can make admissions on behalf of client.

Legislation

-Evidence Act s.34(1) - Application of

Practice & Procedure -

Counsel - Powers and status of in the conduct of a client's case -

Whether can make admissions on behalf of client - Pleadings - When issues may arise

- Land matter - What may be in issue - Concurrent findings of facts - When the Supreme

Court may interfere.

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350

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NIGERIAN SUPREME COURT CASES

[1992] 1 N.S.C.C.

ISSUES:

1.

How may evidence given in an earlier case be treated in a subsequent new

case?

2.

What is the acid test in a case involving demarcation of boundary?

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FACTS:

The plaintiffs/appellants had in suit No. 0/52/73 for themselves and on behalf

of the people of Umusiome Nkpor brought an action against the defendants as

representatives of Ikenga Ogidi claiming (as amended) for a declaration of title to

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Okofia land as shown and edged pink on their plan No.ECAS.66/77; perpetual

injunction restraining the defendants, their agents and servants from further

trespassing into the plaintiffs' Okofia land, and an order of court decreeing that the

boundary between the lands of the plaintiffs and the defendants was at "Mgbu

Bush" to be marked with concrete pillars. The plaintiffs based their claim to their

Okofia land on tradition (acquisition by settlement) and diverse acts of ownership

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and possession. They also pleaded a certain Supreme Court suit No.SC.570/1965

in which, according to them, the Supreme Court dismissed all claims of the

defendants to the plaintiffs' Okofia land (land in dispute).

The defendants joined issues with the plaintiffs on the above facts and based

their case on tradition and diverse acts of ownership. They asserted that the land 20

in dispute was more accurately represented by their plan No.MEC/65/79 filed with

their statement of defence. They also maintained that title to the land in dispute,

damages for trespass and injunction had been awarded to them in two consoli-

dated High Court's suits Nos.0/24/56/ and 0/12/57 and the plan No.EC/44/55 was

used in those cases. Also they stated that Native Courts had in 1932 demarcated 25

the boundary between the defendants' people and the whole five villages of N kpor.

They also maintained that the thick bush called "Mkpu" by Nkpor people but "M pia"

by the defendants and which was nearer to Nkpor and marked the boundary

between the defendants' people and Nkpor people had been cleared by Nkpor

people. In answer to the plaintiffs averments on suit No.SC.570/1965, the defen-

dants explained that it was a case of trespass by their people against the plaintiffs'

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people over part of the land now in dispute. The Supreme Court in that appeal

found that the present plaintiffs conceded title to the present defendants but

dismissed the claim for damages for trespass on the ground of conflict of evidence.

The defendants maintained that apart from suit No.SC.570/1965 the plaintiffs had

never won any case touching the land in dispute against the defendants. On the 35

other hand, the defendants pleaded and relied upon several suits, some against

the present plaintiffs and others against other quarters of Nkpor. Among the litany

of cases are Ogidi Native Court suit Nos. 170/25 and 41/26, Onitsha Divisional

Court suit No.7/1929, suit No.44/44, Mbanano suit No.163/49, Appeal No.2/50,

Onitsha High Court suit No.0/48/1952 and Magistrates Court charge 40

No. MO/724C/63. Each party also testified, called witnesses and tendered some

exhibits.

It does appear, however, that not all the cases pleaded related exclusively to

the land in dispute and that some related to or included other lands in the

neighbourhood. Be that as it may, the learned trial judge, after hearing, held that

the plaintiffs had not made out a case for a declaration of a customary right of 45

occupancy, that the "Mkpu" or "Mpia" bush which the plaintiffs claim to be the

boundary was not in fact the one in the boundary, but inside the defendants' land.

Although he decreed a boundary for them, it was not the one that the plaintiffs

wanted. The injunction granted was to be operative up to the boundary then

decreed.

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