Ndukwe Okafor & Ors V. Agwu Obiwo & Anor (1978)

LawGlobal-Hub Lead Judgment Report

IDIGBE, J.S.C. 

Judgment was on the 30th day of March, 1965 given in the proceedings which started as HU/10/62, in favour of the plaintiffs (the respondents herein) against the defendants (the appellants herein) by the High Court of the former Eastern Nigeria (now, Imo State of Nigeria) holden at Umuahia (Allagoa, J., (as he then was) for:

(1) a declaration of title to parcel of land known as “Ubakwu Ukpo” lying and situate in Abriba, (in the then Bendel Division) and which parcel of land is shown delineated and verged yellow on Plan No. ESP/1296 (LD) – Exhibit ‘A’ in these proceedings;

(2) 125 Pounds (i.e. N250) as special damages and 100 Pounds (i.e. N200) as general damages for trespass; and

(3) a perpetual injunction restraining the defendants their servants and/or their agents from further trespassing on the land, “Ubakwu Ukpo.”

The respondents herein claimed from the High Court aforesaid against the appellants herein orders for declaration of title to the land known as “Ubakwu Ukpo” (hereinafter called the land in dispute) 300 Pounds (i.e N600) as special and general damages for trespass by the appellants on the land in dispute and, for perpetual injunction.

As appears from their pleadings the case for the respondents may be thus summarised: The land in dispute is part of an entire area of “Ukpo lands” “absolutely owned” by their ancestor – Ukpo – who was the first person to settle on these lands. Right of ownership of these lands “descended to them” through their forefathers who, as children of Ukpo, had inherited them from him. In the course of years they had before them, their forefathers, exercised and still exercise rights of ownership of these lands and, in particular, the land in dispute by farming and, cultivating palm plantations thereon and also granting portions thereof to strangers, for purposes of farming, upon payment by them (the strangers aforesaid) of tributes and/or rents; these they did openly but without any interference or hinderance from anyone whomsoever (and in particular, the appellants). In 1940, however, the people of Ndi Ebe in Abam trespassed on the land in dispute and consequently, a member of their community – one Kalu Umo in Suit 12/40 brought, on behalf of the respondents against Kalu Irolo (as a representative of the people of Ndi Ebe aforesaid), an action (in the Abam Native Court) in which he successfully claimed a declaration of title to the land in dispute.

The respondents claim that, at all stages in the prosecution of this suit the appellants are very much aware of the proceedings aforesaid but neither applied to join in the proceedings nor appealed from the judgment of the native court which was in favour of the respondents. Twenty-one years after judgment in the said suit (i.e. No. 12/40 aforesaid) 1961, the appellants trespassed on the land in dispute and for the first time laid claim thereto, damaged and destroyed the respondents’ palm tress thereon as well as cut and removed the “palm bunches” on the said trees; when challenged for their acts of vandalism, the appellants threatened to continue these wanton acts of destruction. Whereupon the respondents commenced these proceedings.

The appellants by their pleadings and in their evidence deny any knowledge of Suit 12/40 aforesaid adding that “in any event any such proceedings are relevant” to the present proceedings on the ground, that they are “res inter alios acta.” It was their case that their ancestor – one Ebulu – through whom they claim right of ownership of the land in dispute was the owner of the said land – which, according to them is, called “IYIOCHA” and not “Ubakwu Ukpo”. Although they claim to defend the suit on behalf of the Umuhu people of Abam they say that the land in dispute belong to a section of Umuhu people of Abam known as Umuokwe. While they do not claim unequivocally that they entered the land in dispute in exercise of their rights as owners thereof, they pleaded, rather vaguely, in paragraph (7) of their Statement of Defence as follows:- The defendants will maintain that should there have been any such entry by them as alleged (i.e. as alleged by plaintiffs) such was done in exercise of their rights as owners in possession.” (Brackets and underlining supplied).

In paragraph 3 of their Statement of Defence the appellants refer to a parcel of land which adjoins the Northern boundary of the land in dispute and claim that they successfully defended a claim in the High Court – in Suit HU/201/61 – to that portion of land by the people of Amamba against the Umuokwe people.

At the close of their respective case, the learned trial Judge reviewed in detail the evidence on both sides and, as already stated in this judgment, found against the appellants and gave judgment in the terms earlier on set out in this judgment. This appeal is from the said judgment. We think it is right to observe, at this stage, that one or two exhibits which were admitted in evidence at the hearing of this case in the lower court got lost during the period of the civil war, 1967 – 1970; but learned counsel for the appellants, however, before the commencement of his argument and submissions in this appeal told the court that he was disposed to argue his appeal although these exhibits were unavailable. As learned counsel for the respondents also had no objection to the appeal being argued in those circumstances, we entertained argument and submission on both sides (i.e. the appellants and the respondents). Learned counsel for the appellants abandoned two of his five grounds of appeal; the three grounds of appeal which were argued read as follows:-

“Ground (1): The learned trial Judge misdirected himself in law and in fact in his finding that the defendants had knowledge of Abam Native Court Suit No.12/40 between the people of Ndi Ebe Abam and the plaintiff’s people.

Ground (2): The learned trial Judge erred in law in using the plan used in the Abam Native Court suit No.12/40 for the purpose of determining the boundaries of the land in dispute in the action before him.