Obi Izediuno Ezewani V. Obi Nkadi Onwordi & Ors. (1986)

LawGlobal-Hub Lead Judgment Report

KAZEEM, J.S.C. 

The land dispute between the people of Ibusa and the people of Ogwashi-Ukwu both of Bendel State, which gave rise to this appeal, apparently began in 1962. It is therefore important as background to this appeal, to take a look at what happened at that time.

In that year, both parties sued themselves over the same land; and those Suits – Nos B/44/62, B/46/62 and B/47/62 – (hereinafter called the “1962 case”), were subsequently consolidated for trial. In two of those Suits, the Ogwashi- Ukwu people as plaintiffs claimed declaration of title, damages for trespass and perpetual injunction over the same farmland which they called Odonkwo land.

But at that time, the Ibusa people as defendants did not counter-claim for any declaration of title to the land in dispute. In both their pleadings and the evidence adduced at the trial of the 1962 cases, both parties, relied heavily on their traditional histories. The trial Judge therefore at the conclusion of the trial disbelieved the traditional history of the Ogwashi-Ukwu people and said inter-alia that he was inclined to lean to the view that the grains-of truth in the traditional history (of the Ogwashi-Ukwu people) appeared to have lost their lustre with the passage of time. (See page 118 lines 21-24 of Exh. F.).

On the other hand, he believed the evidence led on the traditional history of the Ibusa people and said: “I must say that I am impressed by the Traditional history (of the Ibusa people) which rings true”. (See page 121 lines 4-7 of Exh. F.).

In the result, the Ogwashi-Ukwu people lost their case both at the High Court; and on appeal to the Supreme Court. However, since the Ibusa people did not counter-claim for a declaration of title to the land in dispute, none was declared in their favour. Consequently in 1966, the Ibusa people as plaintiffs took out a fresh action against the Ogwashi- Ukwu people as defendants on the same land in these terms:-

“(a) A declaration that the boundary between the plaintiffs of Ibusa and the defendant of Ogwashi-Uku is at Ubu Stream and in accordance with the boundary as represented on Plan NWC/102/70 by life trees on the North-West of the land in dispute and verged GREEN on the said plan.

(b) A declaration of title to the piece and parcel of land known as Ani Umuezemesa and comprising other smaller portions of land as shown in the plaintiffs’ plan and verged GREEN on the said plan.

(c) 300 for trespass to the plaintiffs land known as “Ani Ezemesa” of smaller parcels known and called Ibulu-Ibu, Adagba, Oloki, Etekuehe, Alagbo Elue and Akwu Ukwa.

(d) Injunction to restrain the defendant, his servants and/or agents from further acts of trespass or interference with the plaintiffs’ possession, ownership, use and enjoyment of the said land.”

In their Amended Statement of Claim the plaintiffs pleaded the boundaries of their land and the acts of ownership exercised thereon in paragraphs 4, 5 and 6 thereof; but they did not specifically plead their traditional history therein. Rather, they pleaded the facts and findings of the proceedings and judgment of the 1962 Cases in paragraphs 7 and 10 thereof.

It is significant that in their own Amended Statement of Defence the defendants pleaded in paragraphs 16 – 23 thereof another traditional history different from the one relied upon in the 1962 cases. Moreover, they denied that they were parties to those cases.

Finally, they also joined issues with the plaintiffs on the ownership of the land in dispute in paragraph 12 of their Amended Statement of Defence.

At the trial, the plaintiffs on the one hand testified substantially in support of the averments in their Amended Statement of Claim and tendered the proceedings and judgment in the 1962 Cases as Exh. F. Even though they did not specifically plead afresh their traditional history, the 1st Plaintiff – Obi Nkadi Onwardi – in answer to questions under cross-examination confirmed that he was a party to the 1962 Cases, and also gave their own traditional history. He said:-