Chief Ikeduwa Gbaruko & Anor Vs Ukaegbu Iroegbu & Anor (1972)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, JSC.

In suit No. HU/224/196l in the High Court of the former Eastern Region, holden at Umuahia, the plaintiffs, herein appellants, claimed against the defendants, herein respondents, a declaration of title to a piece or parcel of land known as Egbere Eke Akoro, £300 damages for trespass and an injunction. The plaintiffs are the representatives of the people of Umuohu Mdume, Ibeku, and the defendants are sued as the representatives of the people of Okwuta.

In obedience to orders of court made in that respect, the plaintiffs and the defendants filed and exchanged pleadings and plans whereon were delineated the land in dispute known to the plaintiffs as Egbere Eke Akoro but to the defendants as Uzo Eke as well as other pieces or parcels of land some of which are contiguous with, and others within, the land at present in dispute alleged to have previously been in dispute between the plaintiffs and the defendants.

Indeed, on the pleadings as well as on the evidence at the trial, it was common ground that from time to time there had previously been disputes between the parties over certain pieces or parcels of land adjacent to or contiguous with or within the land in dispute, the subject matter of the present appeal, and on each such occasion such disputes had terminated in court actions. In 1945, by the Ibeku Native Court suit No. 67/1045, Exhibit P, in the proceedings, the plaintiffs herein obtained judgment for “an order of court for the defendants” (i.e. the defendants herein) “to quit”

the land “called Alaocha Ahaba in possession of defendants”. On appeal to the Odida Anyanwu Native Court of Appeal by the defendants – Appeal No. 67/1945. Exhibit P- the judgment of the Ibeku Native Court in suit No. 67/1945 was set aside and the land was ordered to be divided between the plaintiffs and the defendants herein.

Finally, in 1946, on a review at the instance of both parties by the Resident, the judgment of both the Ibeku Native Court in suit No. 67/ 1945, Exhibit P, and of the Odida Anyanwu Native Court of Appeal were set aside and the plaintiffs’ claim therein was dismissed. Judgment was entered for the defendants herein.

Now, the land Alaocha Ahaba, then in dispute in the Ibeku Native Court suit No. 67/1945, Exhibit P, is shown verged pink in the plan No. UI/46 dated 11th January, 1946, Exhibit P1, which was prepared on the order of the Resident, D.A.F. Shute, and was produced, tendered by consent of both parties and admitted in evidence by the Resident when he reviewed the case after the appeal to the Odila Anyanwu Native Court of Appeal. The said land Alaocha is also shown and delineated on the defendants’ plan No. CS/140/62 dated 4th August, 1962, Exhibit N, in the proceedings on appeal, as contiguous with the land in dispute herein, the southern, western and northern boundaries there of being thereon verged green while the eastern boundary, which is common between it and the land in dispute, is thereon verged pink.

The land Alaocha shown on the plans, Exhibits P1 and N respectively, as described above, includes another piece or parcel of land called Ala Ehi Miri the title to both whereof was subsequently awarded to the defendants herein in another suit – Odida Anyanwu Appeal Court Suit No. 269/47, Exhibit S, in the proceedings on the appeal in hand, which award was confirmed by Resident L.T. Chubb on appeal in his judgment dated 14th February, 1948 wherein the defendants’ claim to an adjoining piece or parcel of land known as Odo Akoro situate and lying south of Alaocha and Ala Ehi Miri and verged yellow and purple respectively in the plans, Exhibits P1 and N, was dismissed in favour of the plaintiffs herein. The defendants were non-suited in respect of their claim to the piece or parcel of land known as Uzo Eke by them.

Subsequently thereafter, in 1958 to be precise, the plaintiffs granted a portion of the present land in dispute called by them as already stated, Egbere Eke Akoro, and by the defendants herein as Uzo Eke to the Roman Catholic Mission for the purpose of building a training institution.

That sparked off another dispute and resulted in the defendants herein instituting in the Ibeku Native Court- suit No.643/1959, Exhibit E, in the proceedings on appeal – against the plaintiffs herein claiming as was then set out in their particulars of claim the following –

“Declaration of title to the plaintiffs’ land known and called Uzo Eke Okwuta land trespassed since two weeks.”

On 26th October, 1959, the Ibeku Native Court, after having inspected the land in dispute between the parties and a careful review of the evidence, entered judgment for the defendants herein granting to them as against the plaintiffs herein a declaration of title to the land, Uzo Eke by declaring in the said judgment that “the land Uzo Eke Okwuta belongs to the plaintiffs”.

The plaintiffs herein did not appeal against that judgment. Instead, they filed a fresh action – suit No. A/133/59 – in the Aba High Court against the defendants herein claiming a declaration of title to Egbere Eke Akoro, £50 damages for trespass and an injunction. Thereafter, they also filed and served on the defendants copies of their Statement of Claim and the plan of the land, the subject matter of the action, Exhibits Q and Q1 respectively in the proceedings on appeal. On 5th April, 1961, in the course of the trial of the case in the Aba High Court by Kaine, J., the plaintiffs herein submitted to a nonsuit and were accordingly non-suited with 30 guineas costs to the defendants herein.

Then came the present suit, judgment wherein is the subject matter of this appeal. The case was tried by Allagoa J., before whom both parties and their witnesses testified in support of their respective cases. In the course of their testimonies, they virtually repeated in varying degrees, the narrative of the long line of litigation between them as herein before set out. The plaintiffs also exhibited the proceedings in the Aba High Court in suit No. A/133/1959 between the plaintiffs and the defendants and the order made by Kaine, J., on 5th April, 1961 non-suiting them, Exhibit C and their plan, No. JJ/20/62 of 16th March, 1962, Exhibit A, showing the land Egbere Eke Akoro as made up of two distinct portions – one verged pink and the other green – the portion alleged to be in dispute and between them and the defendants being on the said plan, Exhibit A, verged pink while the green portion thereon is shown as the land lost by them to the defendants in the Ibeku Native Court suit No. 643/59, Exhibit E.