Onuora Aseagba & Anor V. Patrick Animonye Ofodile & Anor (1972)

LawGlobal-Hub Lead Judgment Report

G. S. SOWEMIMO, J.S.C. 

The respondents, who  were plaintiffs in the Onitsha High Court in Suit No. C/84/57, sued the appellants, as defendants, claiming the following:-

(a) Declaration of title of ownership and possession of the piece or parcel of land known as and called AKWUEFE and more particularly delineated on a plan to file in court.

(b) 200pounds damages for trespass.

(c) Injunction to restrain the defendants, their servants and agents from going on the land in dispute and/or interfering in any manner whatsoever with the plaintiff’s rights of ownership and possession of the land in dispute.

In their Statement of Claim, the Plaintiffs averred that the land in dispute, which they called “AKWUEFE’, is the portion verged PINK in plan No. PO 10/57 (tendered in evidence as Ex. 1) and that the portion of Akwuefe land which fell inside the Forest Reserve is edged BLUE on the plan; that the land in dispute had been that of plaintiffs from time beyond human memory, and occupation by them without let or hindrance from anybody, until 1950 when the defendants trespassed on it by farming on portion of the land which had been cleared by the plaintiffs. That they exercised right as owners by letting out portions for farming to tenants some of whom are members of defendants’ family; that in further exercise of their rights as owners, the plaintiffs had instituted and defended cases in the Native Court in Onitsha, the proceedings of which were tendered in evidence as Exs. 3, 4, 5 and 6; and that not only did defendants, through their women folk trespassed on the land since 1950, but had threatened to continue to do so hence the present action.

The defendants, on the other  hand, in their amended statement of defence referred to the land in dispute as ‘OZALA ANWA’ and claimed ownership of it from time beyond human memory; that they have by themselves, or through tenants placed on the land by them, exercised rights of ownership; that the land called, AKWUEFE is contiguous to the land in dispute and was wholly in the area of the Forest Reserve; that the suits in the Onitsha Native Court Exs. 3, 4 and 5 did not concern the land in dispute; that ODELILI land belonged to the Plaintiffs but that it was never part of AKWUEFE and that  it lay to the north of the land in dispute, which according to the defendants is not AKWUEFE.

On the pleadings the triable issues resolved themselves into an inquiry and determination of the following:-

(1)   What is the correct name of the land in dispute
(2)   In whom is the title vested
(3)   Who were the people in possession actually and especially immediately before the alleged trespass in 1950
The learned trial Judge reviewed the evidence before him as well as what he observed during the inspection of the different portions as claimed by either parties. He held, and quite rightly in our view, that after the Barton Inquiry, in or about 1935, which was pleaded by the defence, the defendants, that is Umudei people, made several representations to the authorities that a large portion of their land, especially the arable one had been included in the extension to the Forest Reserve, which meant that they would have to look out for arable land elsewhere as tenants. That definitely showed that their claim that it was the Plaintiffs’ land that had been taken up by the extension of the Forest Reserve is not true.

The learned trial Judge also considered the evidence about the boundaries as shown on Plaintiffs’ plan Ex. 1, and Defendants’ plan Ex. 2 and also the fact that on a visit to the land in dispute all the features as indicated on Plaintiffs’ plan and given in evidence were seen but the defendants were unable to show any of their own features.  In view of this we can see no justification for the criticism of the findings of the learned trial Judge.

The learned trial Judge had this to say about the land in dispute as described by either party:-

“One issue is clear; “Anwan” and “Akwuefe”, though contiguous, are not even for the purposes of this case, different names for the same portion of land, but one or the other of them is wholly within the Reserve and each party admits that some portion of their “Akwuefe” or “Anwan” land is partly within the reserve.”
…………………………………….
…………………………………….
“Evidence is available that Akwuefe was inspected, no evidence has been made available that Anwan was inspected. A permit was issued to farm on Akwuefe, no evidence of any permit issued in respect of Anwan has been adduced (Exhibits 9 – 11).
When representations are (were) made (about) these controls, no representations are (were) made in respect of Anwan (Exhibit 12). The object of the exercise was to compile a register of land, with a view to introducing controlled farming…………………………..”

“The 1st Plaintiff gave evidence of the situation of the land in dispute, as shown in Exhibit 1, the most Southern point is Mile-Stone 2 from Onitsha, on the Onitsha-Nkwelle Road, and the most Northern point is dead orachi tree, the Eastern boundary is the main road up to pillar OCS 1075, the Northern boundary is motorable road, dividing the land in dispute from Odelili land.
All these features as shown on the land were seen by me when I visited the land in dispute.”

These findings of the learned trial Judge were not challenged on appeal before us. Indeed there was ample evidence before the learned trial Judge which support the findings and coupled with this, is his personal observation of the features on the land in dispute which correspond with the boundary marks detailed in the Plaintiffs’ plan Ex. 1.  The learned trial Judge also drew attention to acts of ownership – firstly, the sale of portion of Akwuefe land to Mba, a member of defendants’ family in 1927, (which land is referred to as Odelili) and secondly, the granting of right of quarrying for stones on portion of Akwuefe land to one Bosah, who also gave evidence. The learned trial Judge then reviewed the evidence led by the defendants in support of their case.  He then set out his findings thus:-