Ezeokafor Umeojiako & Anor Vs Ahanonu Ezenamuo & Ors (1990)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.S.C. 

The appellants were plaintiffs at the trial court and having lost their case there appealed to the Court of Appeal, Enugu Division, where their appeal was dismissed.

Both parties are from the same locality, Ikenga, but from two different villages of Akpuru or Akpulu – (perhaps due to dialectical preference!) and Amaokuko respectively. The appellants in their plan, which was exhibit A at the trial court, named the land in dispute over which they claimed ownership by praying for declaration of title and injunction, forfeiture and damages resulting from trespass as IKE UGWU AKPURU.

The plaintiffs claimed to represent Akpulu family of Ikenga. After several amendments of their claim and statement of claim, following closely on the respondents filing their own statement of defence, the case took off and the evidence offered by the parties lead to the close of the case. Learned trial Judge felt as if the plaintiffs were on a wild goose chase and this is evidenced by the record of proceedings substantially made up of amended pleadings by the appellants, provoked each time by the facts in the statement of defence.

The appellants submitted for evidence exhibit A, which according to them represented the land in dispute. Against this plan is exhibit B submitted by the respondents as defendants at the trial court. The two plans are drawn on the same scale 1″:200″, but there is a world of difference in their contents and scope.

Exhibit A tendered by the appellants has very limited scope, showing the area in dispute as pink verged and inside this pink verge are two areas verged blue which allegedly provoked the litigation leading to this appeal; and finally an area verged violet allegedly granted by the appellants to the respondents. Outside the area verged pink, the portion to the east, west and southwest are marked as Akpuru (Akpulu) land. Against this is the respondents’ plan, exhibit B which covers a larger area and thus having a wider scope. This exhibit shows a yellow verged area enclosing a pink verged portion corresponding to the land in exhibit A allegedly in dispute.

Both the area in dispute and the land surrounding it verged yellow, come under the name Akpuru or Akpulu used by the appellants to describe the land is not used in exhibit B. Scattered inside the disputed area and immediately outside it in the verged portion are various settlements and farms e.g. Monghalum, Nwafor Uba Atuegwu, Ezekiel Okonkwo, Aronu, Joseph Umeh, ancient hut of Ugwuowele and Ahanonu Ezenamuo’s compounds, all belonging to the respondents within the disputed area.

Similarly within the yellow verged portion but outside the portion verged pink are settlements of David Umeh, Nwankwo Odoeze, and others on the west and settlements occupied by Ugo Ezenemuo, Charles Dimkafor on the east, and farm of Ezeilo to the north, all occupied by the defendants/respondents family or their tenants.

All these areas are not shown on the appellants’ plan, exhibit A. The only common features in the two plans apart from identical scale of drawing and similarity of land in dispute are St. Philips C.M.S. Church, Infant School and Teachers buildings and teachers quarters. Apart from these missing features in the appellants’ plan, there is no dispute as to identity of the disputed land.

The appellants claimed the whole disputed land belonged to them and that whenever the respondents show presence therein, it was as a result of their permission by the appellants or through an act of trespass. In the usual manner of the naming of the land in dispute, the appellants call the land Ikengwu Akpulu or fully “Ana Ikengwu Akpulu.” This is because their family is called Akpulu family. This family according to the second plaintiff, Ezeanoikwa Umennaikwe, P.W.2, originated from the first settler on the land called Dimidiji, who begat Akpulu from whom the family derived its name. They claimed exclusive ownership of the land and that they farmed on it, harvested crops and planted economic trees on it and gave out portions to tenants. Some of the tenants they claimed, are Nwankwo Ezeilo, C.M.S. Mission, Ikenga, and one Okoye Ezeilo. This second plaintiff, P.W.1, is their spokesman and their case rested squarely on his evidence. He agreed that their Akpulu family is made up of three sub-families, to wit Umuezeotakwu, Umuokeke and Umuonono. He attempted to distance Umuonono as subfamily attached to Akpulu and as of no consequence. But evidence emerged, which learned trial Judge believed that indeed Umuonono is the principal branch of Akpulu family and being dissatisfied with the appellants’ claim disassociated themselves from the action giving rise to this appeal. Apparently, it was the plaintiffs’ wish to distance themselves from the Umuonono as found rightly by the trial Judge when he said inter alia as follows:

“the witness stated that Umuonono came and attached themselves to Akpulu family but they are all known as members of Akpulu family in Ikenga. This witness who is about fifty years old stated that Umuonono people have been living together with their family before he was born. It was his evidence that Umuonono sub-family does not own the land in dispute with the rest of the family. He further stated that they did not join them in bringing this action. He denied the suggestion that Umuonono sub-family is the head of Akpulu family.”

This witness, P.W.1, insisted it was the plaintiffs that gave the church missionary society the land on which their church, schools and the teachers’ houses are built but offered no evidence in support. As against this is the evidence of the respondents, showing not only their being in possessions, but also their unequivocal grants to the C.M.S. Mission and other tenants and these grants and possession dated over a lengthy period of time that it is a certainty they and not the appellants have better title to the land in dispute. The nearest evidence to proving any right of the plaintiff over the disputed land according to the Judge, is that of P.W.2, Okerie Ezeilo, who claimed to be the plaintiffs’ tenant, not on the disputed land but on an adjoining land, “having a common boundary with the land in dispute.” This witness, however, confessed he did not know the families in Akpulu but knew the families seem to be “separated from each other” only the previous year before he gave his evidence. The other witness Okorondo Okeke, P.W.3, an in-law of the plaintiffs, said that he used to work for the plaintiffs on the land without being challenged; this was all he knew. For his part, Nwankwo Ezeilo, P.W.4, blandly said he knew the land in dispute belonged to the appellants without anything more, and that is because he paid tributes to them. He farmed the land only once and had left the land twelve years prior to his evidence. It is remarkable that none of these P.W.2, P.W.3 and P.W.4 ever in their lengthy evidence pointed at the very portion of the disputed land where they occupied, however briefly. The trial Judge had no reason to prefer their evidence to the cogent evidence of the defendants/respondents, who not only demonstrated where they occupied on the land in question, but also the grant to the C.M.S. Church. The evidence of the third defendant, as D.W.1, as to how the C.M.S. Church was given part of the disputed land in 1957 is clear and supported by the evidence of the district pastor, D.W.2. This witness, D.W.1, tendered exhibit C, a 1922 case decided in favour of his father against the plaintiffs’ family. As this was not enough, Okoli Ewerije, D.W.4, who is a member of Umuonono family, the principal family of Akpulu, and was the head of that family, testified that the disputed land belonged to the respondents.

The respondents of Amaokuko village call the land Ana Ugwu Owelle and they claimed that the land had been theirs from the time of their forefathers and that the appellants are only trying to divest them of it because they had land on the west of the disputed land as boundary men.

Learned trial Judge in a well considered evaluation of the evidence before him came to this strong conclusion: “After considering the evidence led by the parties in this case and the submission of their counsel, I have come to the conclusion that the plaintiffs’ case is very weak. I do not believe the plaintiffs and their witnesses that the defendants who undoubtedly live on a portion of the land in dispute live on the land as a result of a grant made by their ancestor to the defendants’ ancestors. I am satisfied and find as a fact that the defendants live on the land as of right and not as a result of any grant made to them by the plaintiffs’ ancestor. Each party claims making the grant to the C.M.S., a very important act of ownership. I do not believe the plaintiffs that the grant was made by them. 2nd plaintiff in his evidence stated that the grant was made by his father to the C.M.S. But P.W.5 appears to disagree with this claim for in his evidence he stated that the grant was made by his father to the C.M.S. According to him, 2nd defendant’s father, Umennaike, was merely present when his father made the grant. I agree with Mr. Anyaduba, the learned counsel for the defendants that failure on the part of the plaintiffs to call an independent witness to give evidence for them on this important issue weakens plaintiffs’ case.