Lawrence Okafor & Ors V. Felix Nnaife & Ors (1973)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C

The present appellants were the second set of defendants in an action filed by the respondents, as plaintiffs, in the High Court Onitsha. The plaintiffs are described on the writ as follows:-
“Felix Nnaife for himself and on behalf of the family of Umuokwe Ezinkwelle.”and the claim, as endorsed on the writ, is for –

“(1)  A declaration that the defendants are the customary tenants of the plaintiff and according to native law and custom cannot put tenants on the plaintiff’s land or farm on the plaintiff’s land without obtaining plaintiff’s permission.

(2)  300 pounds damages for trespass in that the defendants acting in concert put tenants on the plaintiff’s land and cut plaintiff’s economic trees and farmed on portions of plaintiff’s land without obtaining plaintiff’s consent.

(3)   Injunction to restrain the defendants from putting tenants on the plaintiff’s land or doing things on the plaintiff’s land inconsistent with their position as customary tenants.”

The writ was shown as having been filed on the 15th February, 1960. The defendants shown and endorsed on the writ, as originally filed, were eight as follows:-
1. Charles Ogadike
2. Augustine Okonkwo
3. Nwugo Anaeto
4. Reuben Ofodile
5. Nwokwu Nwosu
6. Reuben Osameke
7. Stephen Okeke
8. Nwefi Okeke
9. Ikemma Okonkwo

They are the first set of defendants to this case. On the 8th June, 1960, and obviously in pursuance of an Order of Court to that effect, the plaintiffs filed and delivered a Statement of Claim in which they described the land in dispute as situate at Nkwele Ezunaka loosely divided into three portions or parcels of Ugwu Ochichi Ugwuoma and Oghundo lands. The Statement of Claim also described the first set of defendants as descendants of plaintiffs’ original customary tenants to whom specific portions of lands were severally allocated for farming purposes by the Plaintiffs after payment of tributes by them to the plaintiffs and who were now disputing the title of their overlords, i.e. the plaintiffs.

The first set of defendants, on the 12th September, 1960, filed a Statement of Defence in answer to the plaintiffs’ Statement of Claim, by virtue of which they claimed to be co-owners of Ogbundo lands with the plaintiffs as they themselves had settled thereon on the invitation of the plaintiffs’ ancestors and had established a common or joint settlement thereon. On the 10th February, 1964, the plaintiffs filed a Reply to the Statement of defence of the first set of defendants in which they disputed the claim of ownership or joint ownership of the land in dispute by the first set of defendants.  On the 5th May, 1964, and by Motion of that date, the plaintiffs applied to the court for “an order of court to join Lawrence Okafor, Augustine Achia, Nwoye Akeme and Michael Mgbemena as co-defendants in the above suit for themselves and as representing the entire Amagu Community of Nkwelle Ezunka….”. The motion was supported by an affidavit sworn to by Felix Nnaife, the representative of the plaintiffs’ people, and paragraphs 2, 3, 4,5 and 6 of the said affidavit read as follows:-

“2. That the present defendants are a Section of the Amagu Community resident in Nkwelle Ezunaka.

3. That the party sought to be joined otherwise called co-defendants are also from Amagu as well as the present defendants.

4. That the interest of the defendants and co-defendants with regard to the land in dispute is the same.

5. That the said defendants and co-defendants were put on the land in dispute by my people.

6. That the present defendants’ represent only one family in Amagu.”
Learned counsel for the first set of defendants, did not oppose the application when it was heard in court on the 11th May, 1964, and the following order was made by the court:-
“Order as prayed. I order that the amended summons and S/C/ be filed within 21 days and served as the co-defendants. Return date 15/6/64.”

Pursuant to this order, an amended Statement of Claim was filed by the plaintiffs on the 20th May, 1964. This Statement of Claim contains similar averments to those contained in the Statement of Claim filed in respect of the first set of defendants on the 8th June, 1960, as well as the following specific averments concerning the second set of defendants – who are the present appellants – in paragraphs 2, 3, 9 and 10 thereof thus:-