Nwafor Elike V. Ihemereme Nwokwoala & Ors (1984)

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ANIAGOLU, J.S.C.

Only one issue falls to be determined in this appeal, namely, whether, as held by the Court of Appeal, there was a want of fair hearing in the court of first instance. The appellant in the only ground of appeal filed put it thus, that:

“The Federal Court of Appeal erred in law when it held that the defendant/respondents had no fair hearing before the learned trial judge.” To appreciate the ground of appeal, one must understand the background of the case, leading up to the judgment of the High Court. The plaintiff had taken out a writ in the Owerri High Court of Imo State claiming:

“1. Declaration of title to land known as and called NKPA situate at Umuonyeri Amala in Owerri Division with an annual value of 3pounds (three pounds).

2. 100pounds(One hundred pounds) being general damages for trespass.
3. Perpetual injunction restraining the defendants their servants and or agents from entering the said land.

DATED AT Owerri this 4th day of April, 1972.

(Sgd) D. Njiribaako,Esq.,

Solicitor for plaintiffs.”

As a classic example of how protracted land cases can be in this country, the claim came before Chuba Ikpeazu, J., as far back as 12th June, 1972, who on that day, ordered pleadings which were subsequently flied and served. It was the contention of the plaintiff in his statement of claim that this father cleared the land as a virgin bush, and, according to custom, owned it by reason thereof. The defendants, on the other hand, pleaded that the great-grandfather of both the plaintiff and the defendants cleared the virgin bush and therefore owned it by custom and that the land descended to both the plaintiff and the defendants who owned and possessed it communally. The plaintiff’s story is contained in paragraphs 4, 5, 6, and 7 of the statement of claim set out hereunder as follows:

“4. The plaintiff’s father was one Elike Nwolo. The said Elike Nwolo lived near the land in dispute at a time when it was a virgin forest untouched by man. Leopards had come from this virgin forest to kill and carry away the domestic animals of Elike Nwolo. Elike who was a renowned hunter in his days went into this forest and shot and killed a leopard. The killing of the leopard was a deed of valour and this incident became part of the local history and legend.

5. After the plaintiff’s father had killed the leopard, he started to clear the forest so as to destroy the hiding place of the dangerous animals that harassed him. The local people who regarded the forest as an evil one just watched him clear the forest alone. But while clearing it Elike Nwolo lost his eldest son called Onyebuenyi and also a wife called Nwucheshi.
6. As a result of the deaths of his wife and son, Elike Nwolo consulted an oracle and thereafter engaged the services of two renowned native doctors in the area named Oluigbo from Umuisu and Okoroiwuala from Okudu Amala. With the help of both native doctors he continued the clearing until he cut a reasonable big area away from his dwelling place. The land now in dispute is within this portion which was cleared by Elike Nwolo.
7. According to Amala native law and custom, the person who first clears a virgin forest becomes the owner of that portion cleared by him. Thus the land in dispute became the land of Elike Nwolo.”

The defendants’ version is contained in paragraphs 4 and 5 of their statement of defence hereby produced:

“4. The defendants admit that according to Amala native law and custom, the person who first clears a virgin forest becomes the owner of that portion cleared by him but deny that plaintiffs father cleared the virgin forest. It was plaintiffs and defendants’ great-grandfather, Oduwumi, who first cleared the virgin forest which then became his land inheritable by his descendants.

5. The defendants admit that Elike Nwolo, plaintiffs father, farmed in this land but he did so as a member of the family (Oduwumi) and in conjunction with other members of the family including the defendant’s father. The land was not then shared amongst members of the family but was commonly used for farming purposes during planting seasons. Both plaintiffs and defendants’ grandfathers had farmed on the land for over 40 years before packing over to the site for residential purposes. Both plaintiffs and defendants’ fathers also lived on the land. Also both the plaintiff and defendants (and other members of the family) lived on the land before transferring to other site. Any member of the family occupying a portion of the land owns that portion.”

After the filing of pleadings was completed in May 1973, the case was not listed for hearing until 5th October 1977 when it came before Abengonwe, J., in the High Court of the Owerri Judicial Division. After a series of adjournments the judge commenced hearing on 29th March, 1978. Between that date and 6th November, 1979 he was only able to hear the plaintiff and three witnesses after which, for reasons not disclosed on the record, the case came before Chianakwalam, J., on 18th January, 1980 who started the hearing de novo, on 28th July, 1980.

The plaintiff testified, called two witnesses and finally closed his case on 28th October, 1980. Both sides were represented by counsel-the plaintiff by P. C. Onumajulu Esq. and the defendants by J. O. Iwuagwu Esq. At the end of the plaintiffs case Mr. Iwuagwu called the 5th defendant who stated that his evidence covered the evidence of the rest of the defendants who were his brothers. By reasons of the shortness of his evidence it is hereby reproduced as follows: “5th defendant Daniel Nwankwoala sworn on Bible states in Theo. My name is Daniel Nwankwoala. I live at Umuonyeri Amala. I am a farmer. I know the plaintiff and the other defendants. The defendants are my brothers. My evidence in this case covers the evidence they are to give in the case. I know the land in dispute called Okpulo Oduwumi situate at Umuonyeri Amala. I made a plan of the land in dispute. This is the plan. Counsel seeks to tender it. No objection, Plan No. EC.327/ 72 admitted and marked exhibit B. The land is bounded by land of Nwiwu Odom of Umuonyeri Amala; land of Nwankwo Mgbakabala of Umuisi Amala; land of Nwawulo Nnadi of Umuisi Amala, land of Karawusa Ojiegbe of Umuonyeri Amala; land of Nwuju Iwezo of Umuoleforo Amala; and land of plaintiff. The original owner of the land was not Elike the father of plaintiff. The original owner was Oduwumi. The land was originally owned by one Obasi who was the father of Oduwumi. When Obasi died, Oduwumi his son inherited the land. When Obasi died, his land was shared amongst his children. The land in dispute is the one Oduwumi inherited after the sharing. He did not inherit it as virgin land.”

The record shows that Mr. Onumajulu for the plaintiff did not cross-examine the witness. Mr. Iwuagwu for the defence then closed his case.