Ezekiel Emenimaya & Ors. V. Okpara Okorji & Anor (1987)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C

This appeal relates to two actions which were consolidated and tried together in the High Court, Ahoada.

The first action, suit No.AHC/4/73 was instituted by the appellants herein as plaintiffs, against the respondents, claiming as follows:

“(a) declaration of title to all that piece or parcel of land situate at Odiemerenyi Village, Ahoada Division, known as and called “OKPUDOR” which will be clearly defined in a plan to be filed in this suit.

(b) N600.00 (Six hundred Naira) as general damages in that in the month of April, 1973 the defendants broke and entered the said land of Plaintiffs to farm thereon by planting cassava and cocoyams.

(c) perpetual injunction restraining the defendants their servants and/or agents or privies from any act of trespass or in any way interfering with the plaintiffs’ use or enjoyment of the said land.”

The second action suit No. AHC/9/75 was instituted by the respondent against the appellants in the same High Court, claiming as follows:-

“1 . A declaration of title to a piece or parcel of land situate at Odiemerenyi village in Ahoada Division known as Ugbo farm land which will be better delineated in a plan to be filed later.

2. The sum of N200 being general damages against the Defendants their servants and Agents for acts of trespass upon the said land since 1973.
3. And an injunction restraining the Defendants their servants and Agents from further entry upon the said land.
4. Annual Rateable value of the land amount to N20.00”

Pleadings were ordered in respect of each suit and they were duly filed and exchanged. On the application of the plaintiffs’ counsel in the first suit, both actions were consolidated on the 16th of March, 1976, and throughout the proceedings in the consolidated actions, the plaintiffs in suit No. AHC/4/73 were referred to as plaintiffs and the defendants in the same suit as defendants.

At the trial both parties gave evidence and called a number of witnesses in support of the averments in their pleadings.

Both parties are from the same village of Odiemerenyi in Ahoada Division belonging to different families. While the plaintiffs are members of Umuewe family of Odiemerenyi village, the defendants belong to the Umuojo family of the same village.

Summarily stated, the plaintiffs’ case was that the land in dispute called “OKPUDOR” – meaning an ancestral home, was originally owned by their ancestor IGWELAZU and that it had always been, from time now out of memory, that of their family. It was also their case that a portion of the land called “Ugbo” was given to the defendants’ ancestors by their ancestors for a specific purpose, and by the terms of the grant, the defendants were not permitted to farm or plant any crops on the land granted to them.

The defendants consistently kept strictly to the terms of the grant until 1963 when, without the plaintiffs’ permission, they entered the said land, destroyed the plaintiffs’ economic trees thereon and started planting cassava and cocoyam trees on the land. The plaintiffs pleaded various acts of ownership over the land in dispute and led evidence in support of their pleadings. The defendants’ case was that the land in dispute, called “Ugbo” was founded by their ancestor OGWU, the son of Onyo, and that it had always been, since time immemorial, in exclusive possession of the family passing from one generation to another until it devolved on the defendants. It was also their case that the land on which the plaintiffs built their houses was in fact given to the plaintiffs’ ancestors by the ancestors of the defendants when the plaintiffs left their original village ABORIKPO to settle with the defendants. Like the plaintiffs, the defendants also pleaded various acts of ownership and called evidence in support of their pleadings.

At the trial both parties gave evidence and called a number of witnesses in support of their respective claims. At the conclusion of the hearing of evidence and addresses of counsel, the learned trial judge reviewed the evidence adduced by the parties and upheld the plaintiffs’ claim. He concluded his judgment as follows: