Mba Nta & Ors. V. Ede Nwede Anigbo & Anor.(1972)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

The respondents were the plaintiffs in an action tried in the High Court, Enugu (W. J. Palmer J.) in which their claim as set out in the amended statement of claim reads as follows:-

“Wherefore the plaintiffs’ claims against the defendants are as follows:-

(a) A declaration that the boundary between the lands of the plaintiffs and defendants is as demarcated by Mr. Chadwick and confirmed in Awkunanaw Native Court suit No. 84/46 by Mr. Jackson which boundary is more particularly delineated and shown yellow in the plan CS/146/62 filed in this case Or

In the alternative, should the court hold that Mr. King’s decision is binding on the plaintiffs (which is denied), a declaration that the boundary between the lands of the plaintiffs and defendants is as demarcated by Mr. Chadwick and confirmed in Awkunanaw Native Court suit No. 84/46 by Mr. Jackson as varied by Mr. King which boundary is more particularly delineated and shown yellow in the plan No. CS/122/57 filed in this case.

(b)500pds general damages for trespass committed by the defendants since 1960 when they crossed the said boundary, demolishing boundary pillars and invaded the area of land bordered pink in plan CS/146/62 in possession of the owners, the plaintiffs, destroying plaintiffs’ farms therein, and erecting their own farms and huts.

(c) Injunction to restrain the defendants their agents and all those claiming through them from further trespass by crossing the boundary, farming, building or in any other way doing any act whatsoever as owners of the land across the boundary on the plaintiffs’ side unless with the approval and consent of the plaintiffs. ”

There were 12 defendants named on the writ but one of them, i.e. the 12th defendant, died during the pendency of the case. The remaining 11 defendants are the present appellants before us. As expressed on the writ, the defendants were sued “for themselves and as representatives of Amodu Akagbe people.” In due course the parties filed their pleadings. By their statement of claim the plaintiffs aver that they are natives of Agbani in the Udi Division of Enugu Province, that they were presenting the case on behalf of themselves and their people of Agbani, that the defendants are natives of Amodu Akagbe in the same Division of the same Province and that they were sued for themselves and as representatives of the other people of Amodu Akagbe and that the parties are owners of adjacent lands, the plaintiffs owning lands to the east of the defendants’ holdings. The plaintiffs’ statement of claim also avers that in the course of some bitter litigation between the parties over the years, one District Officer by name Chadwick in 1944 had demarcated a boundary between the parties, that the Chadwick boundary was judicially confirmed by another District Officer, I. C. Jackson, in the course of an appeal brought before him by the defendants against the judgment of the Awkunanaw Native Court of Appeal and that later, i.e. in 1956, one Mr. W. K. King, a Senior District Officer with Resident’s powers, confirmed but slightly varied the said boundary between the parties.

The plaintiffs’ statement of claim further avers in paragraph 21 thereof that having failed in all their endeavours to get the boundary altered, the defendants:-

“invaded the land across the boundary and began to clear portions of it, farm therein and build huts therein. They also destroyed the boundary pillars created therein and destroyed farms and crops of the plaintiffs therein. Since 1960 the defendants have been steadily infiltrating through this boundary and are extending more and more into the plaintiffs’ land. The area over which their trespass had covered is bordered pink in the plan CS/146/62 attached hereto. They have refused to retreat despite repeated warnings by the plaintiffs.”

The defendants’ amended statement of defence confirms the adjacency of their respective lands and avers that the defendants were indeed members of the Amodu Akagbe community. The defendants’ statement of defence further confirms that Mr. Chadwick, District Officer, did demarcate a boundary for the parties as stated by the plaintiffs but denies the judicial confirmation of that boundary by Mr. Jackson although it admits to the variation of the Chadwick boundary by Mr. King. The defendants’ amended statement of defence avers in substance that the lands immediately to the east by the boundary claimed by the plaintiffs to be the King boundary, had always belonged to the defendants who had owned it from time immemorial, that as owners in possession the defendants had always exercised dominion over the said lands, that the defendants were therefore not in trespass for their use of the said lands and that the defendants would set up against the claims of the plaintiffs “all equitable and legal defences.”

At the trial, evidence was given by both sides. The plaintiffs called a Mr. Emmanuel Onunkwo, Assistant District Officer, Udi Division, who produced the record in Native Court of Appeal No. 17/56 and the plan used therein and signed by Mr. King (the Senior District Officer with Resident’s powers) and marked by Mr. King as exhibit C in 1956. The Assistant District Officer produced the plan in evidence in the present proceedings as exhibit 2. The 2nd plaintiff, Nnamani Nwuha, also gave evidence. He testified that the defendants were sued by the plaintiffs because the defendants had entered into their lands some four years ago and farmed the lands and erected buildings thereon. He also stated that they had sued the defendants “for themselves and as representatives of Amodu Akagbe”. He further gave evidence expressing the satisfaction of his own people of Agbani with the boundary marked out by Mr. Chadwick and produced a number of judgments in the several cases between the parties. The plaintiffs’ surveyor, Francis Onochie, also gave evidence stating the he had made a plan for the plaintiffs showing the boundary of their lands with the Amodu Akagbe people as well as the area of the land in dispute. He produced the plan he had made and this was admitted in evidence as exhibit 8.

After the close of the plaintiffs’ case the defence also gave evidence. All the 11 defendants gave evidence to the effect that they farmed the land in dispute, that although they knew there was a Chadwick boundary they did not in fact know its course, that the land they farmed had always belonged to them and their ancestors and that each and everyone of them was only defending the action for himself and not for his village.

Under cross-examination when the 1st defendant, Mba Nta, was questioned about his representation of his people, he answered thus:-