Enyinnaya Okoronkwo Chukwueke V. Oji Nwankwo & Ors (1985)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C.

On the 26th March 1985 we allowed this appeal, set aside the decision of the Court of Appeal and restored the judgment of the trial court. We reserved our reasons for so doing to be given today. I now state my reasons.

The suit was originally instituted in the High Court of Eastern Nigeria, holden at Umuahia, but was eventually heard in the High Court of Imo State at Umuahia wherein the Respondents as plaintiffs claimed against the Appellant and one Okezie Chukwueke as defendants who died thereafter jointly and severally for:

“1. A declaration that the piece or parcel of land known and called “Ubi Oro” valued 10pounds (ten pounds) situate at Uzuakoli in Umuahia Judicial Division is owned jointly by both the plaintiffs and the defendants and that the defendants have no rights by themselves alone without the consent, agreement and participation of the plaintiffs to demarcate, sell, lease or give out all or any portion of the said “Ubi Oro.”

2. 50pounds:-:- damages against the defendants jointly and severally for demarcating and planting cement pillars on the said land without the consent, agreement and participation of the plaintiffs.
3. A perpetual injunction to restrain the defendants and their heirs from any sale, lease, gift or demarcation of all or any portion of the said “Ubi Oro” without the consent, agreement or participation of the plaintiffs.”

The Respondents’ case as averred in their pleadings is that one Uda was the original owner from time immemorial of the land in dispute, the plan of which was admitted in evidence as Exhibit A, and is now the communal land of Amuda which include the defendants and Respondents; that upon the death of Uda, the land devolved to his three issues, namely Okala, Okpugu and Ogwudu who used it in common as a family land and it has remained as such ever since; that the descendants of the said three issues include the Respondents and the defendants who form the Amuda Community consisting of Umuokala, Unuokpugu and Ama Ogwudu families; that the Amuda people have been farming the land, harvesting the economic trees thereon in common and using the proceeds of sale of palm fruits for communal development; that in 1965 the defendants started to demarcate and plant survey pillars on the land with a view to selling portions thereof without the consent of the Respondents and despite the injunction of the Amala (elders) of Eluama that the defendants should stop committing wrongful acts on the communal land, the defendants did not heed the decision of the elders. So the respondents instituted this suit.

In their defence, although the defendants admitted that Uda was a remote ancestor of both themselves and the Respondents, they denied the land in dispute was ever occupied by Uda. Their case is that one Uduma from whom the defendants directly descended and inherited the land, had cleared and cultivated the land and occupied it from time immemorial; that since that time the defendants’ ancestors and themselves have been in exclusive possession of the land and have their old plantations of rubber, cashew, oil palm and other cash crops thereon. They admitted having planted survey pillars on the land but denied having made any attempt to sell any portion thereof.

After having considered the evidence adduced by the parties, the trial Judge found that, contrary to the claim of the plaintiffs that they have been in exclusive possession of the land in dispute since the death of Uda, the defendants had proved acts of possession on their part over a portion of the land in dispute, to wit the area verged violet in the defendants’ plan Exhibit B. The defendants have had cashew and palm plantations thereon since 1958 and had put D.W.5 on a portion of the land as a tenant who farmed there for eight years without any interference.

The trial Judge further found that, contrary to the plaintiffs’ case that the land of Amuda people has never been shared out since the death of Uda, the very plaintiffs’ plan (Exhibit A) shows that the land in dispute is surrounded by personal lands of individual members of Amuda families, namely Okorie Ndulaka, Kanu Anum, Adike Nwankwo, Ude Inegbu, Anugaogu Okor, Okorie Chiori, Ndagbo Eluama and Nworisa Anasonye. He observed that some of the land owned individually are bigger than the land in dispute while some are equal to it in size. The plaintiffs were unable to account to the satisfaction of the trial court for the individual ownership of the vast area of the Amuda land surrounding the land in dispute and how and why the small piece of the Amuda land in the middle, to wit the land in dispute came to be communally owned. Applying the provisions of Section 145 of the Evidence Law, the trial Judge concluded that since the surrounding lands are individually owned, the land in dispute is likely to be individually owned also. This presumption coupled with the defendants’ acts of possession of a portion thereof supported the defendants’ case that they are the exclusive owners of the land in dispute.

Finally, the trial Judge held that on the totality of the evidence the plaintiffs had not proved their case. He dismissed their claim. The plaintiffs were not satisfied with the decision of the trial judge and so appealed to the Court of Appeal which allowed the appeal and granted to the plaintiffs the reliefs sought. In his judgment, with which Belgore and Karibi-Whyte JJ.C.A. agreed, Coker J.C.A. gave three reasons for allowing the appeal: He first relied on the testimony of D.W.2 (the 1st defendant) who said” Amuda has communal land which are forests and people can clear portions of them and those portions become personal property,” to rebut the finding of the trial judge that the plaintiffs failed to account for the individual ownership of the surrounding lands. The learned Justice observed as follows:

“Yet the trial Judge, in invoking the provisions of Section 45 Evidence Law, to discredit the case of the Plaintiffs stated that Plaintiffs failed to account to his satisfaction for the individual ownership of the land surrounding the land in dispute and why a small piece in the middle. One wonders what further explanation was required from the Plaintiffs as suggested by the trial Judge.”

It may be observed that immediately after he had relied and used the testimony of the 1st defendant to prove the trial judge was wrong, in his second reason the learned Justice proceeded to reject the very testimony when he said:

“It was contended, in my view rightly, that mere user of communal land by any of its members, could not convert such land into his personal ownership, no matter the length of time. See Adenle, Otaoja of Oshogbo v. Michael Oyegbede (1967) N.M.L.R. 136, 137 Kuma v. Kuma 5 W.A.C.A. 61 Eze v. Giliegbe & Ors. 14 W.A.C.A. 61 Shelie v. Asonjon (1957) 2 FSC. 65.”

Finally, the learned Justice wrote as follows:

“The judgement of the trial Court in one breadth stated the principle correctly and in another failed to apply same. He threw the onus on the Plaintiffs. The Defendants rested their case on Uduma, denied the radical title of Uda through whom the Plaintiffs rested the title of both parties. I agree that the onus to adduce evidence in support of their case was on the Respondents and that they failed to discharge same. See Arase v. Arase (1981) 5 SC: 33 p. 52. It is obvious that the trial Judge overlooked the evidence of DW.4 who admitted that Uda was the original owner of the land. This admission goes to strengthen the Plaintiffs’ case and to discredit the defence. The evidence is that even DW.4 was a member of Amuda community and a descendant of Uda. The judgment read as a whole without justification threw the onus on the Plaintiffs whereas it was for the Defendants to establish how Uduma, a descendant of Uda became the exclusive owner of the disputed land. See Ozumba Aladun Families v. Molake (1975) 12 S.C. 61. The Defendants themselves made no attempt whatsoever to discharge that onus. It seems that the learned trial Judge was prepared to turn every available evidence against the Plaintiffs in favour of the Defendants. He was not justified in doing so. In my view, there were obvious errors in his appraisal of oral the evidence and ascription of probative values. In addition he made improper use of the opportunity of seeing and hearing the witnesses. His judgment cannot stand in such circumstances. See Fed. Com. of Works v. Lababedi (1977) 11 S.C. 15.”