Jonathan Enigwe & Ors Vs Kenneth Akaigwe (1992)

LawGlobal-Hub Lead Judgment Report

L. UWAIS, J.S.C

Two actions were filed in the High Court of Onitsha as suits Nos.0/18/71 and 0/133/71 by the parties in this appeal. In suit No. 0/18/71 Michael Akaigwe on behalf of himself and the members of Akaigwe family sued Jonathan Enigwe and 7 others in their personal capacities, claiming declaration of title to a piece of land called “Okpuno Maduabuchi”, N200.00 damages for trespass and a perpetual injunction restraining the defendants, their servants and or agents from further trespass to the land in question as shown in a survey plan No.SE/EC/27/71. In suit No.0/133/71 Molokwu Enigwe and Godfrey Udoka for themselves and on behalf of the members of Ezuka sub-family of Umueze family of Alor sued Kenneth Akigwe and 5 others personally, claiming against them declaration of title to a piece of land called “Eziama Ogbuka Eneluwa” shown in survey plan No.EC/165/71; N200.00 damages for trespass; forfeiture and perpetual injunction.

After pleadings were filed in each case, suit No.9/18/71 came up on the 3rd day of May, 1972. Mr. Anah appeared for the plaintiffs and Mr. Obianyo for the defendants. The latter stated that the fanner had written him agreeing that suit No.0/133/71 be consolidated with suit No.0/18/71. Thereupon Egbuna J, declared the suits consolidated as earlier agreed by counsel to the parties. Hearing of evidence began on the 18th day of September, 1980 before F.O. Nwokedi, J., who found that although the parties called the land in dispute different names, the land was one and the same in the dispute.

The plaintiffs case is that the land in dispute was possessed by their father Akigwe Metu, as owner, from time immemorial and that they inherited it from him. The plaintiffs contended that the defendants who originally descended from a woman who begat their (defendants’) ancestor through illicit association with an unknown man could not by Alor native law arid custom possibly own any land in Alor. The plaintiffs alleged that the defendants were known as “Umunwayim” due to their dubious paternity and origin. The word “Umunwayim” literally means children of a woman without a known father. The plaintiffs claimed that the portions of the land in dispute occupied by the relations of the defendants were granted to the former by the plaintiffs’ father. One of such relations was called Maduabuchi. Another relation of the defendants who was a brother of Maduabuchi called Okeke Enyi was similarly granted a portion of the land in dispute to live on. The conditions for both grants was that if both grantees died without surviving male issues, the land would revert to the plaintiffs’ family. Maduabuchi died leaving a son called Ikediobi who predeceased his uncle – Okeke Enyi – without any issue, Okeke Enyi later died also without any male child. Consequently, the land in dispute reverted to the plaintiffs’ family.

The plaintiffs claimed that they had since remained in possession of the land in dispute and that the defendants did not disturb them. In addition, portions of the land in dispute had at various times been granted to other people by the plaintiffs on payment of tribute to the plaintiffs’ family. It was in 1968 that the defendants invaded the land in dispute and reaped economic fruits and claimed the land as theirs (defendants). The claim was resisted by the plaintiffs who made report to Nnewi Police. Members of the defendants’ family were arrested by the police and prosecuted for stealing and were convicted by the Magistrate’s Court, though they were released on appeal to the High Court. In 1969, the dispute between the plaintiffs and the defendants was referred to the tribunal of Umunambu Village by the then Civil Defence Committee. Both the plaintiffs and the defendants were represented by their members before the tribunal. Witnesses gave evidence before the tribunal which inspected the land in dispute. The tribunal gave its verdict in favour of the plaintiffs.

The defendants’ case is that the land in dispute was originally the family land of Umu Ezuka, which is bounded in the north by the compound of Michael Akaigwe (1st plaintiff) which is located on a piece of land granted to Metu (who was the grandfather of the 1st plaintiff) by Ohazume who was a member of the defendants’ family. Emeluwa inherited the land in dispute from his father Egbuke. Emeluwa had two sons, namely, Maduabuchi and Okeke Enyi. On his death the sons inherited his land. Later both Maduabuchi and Okeke Enyi died without surviving sons and their lands devolved on Ikejiofor, Ejikwalu and Obazulume who were brothers of Emeluwa. The defendants are the descendants of Ikejiofor. The portion of land now occupied by the plaintiffs was in fact granted to Metu’s wife by the defendants ancestor for the purpose of farming. Metu was the grandfather of the defendants. In 1969, the Civil Defence Unit in the defendants’ area referred their dispute with the plaintiffs to the meeting of Umunambu Village for settlement but the meeting did not take place because of a dispute over the choice of a chairman to preside over the meeting. As a result the defendants walked out of the proposed meeting and the settlement did not occur.

After addressed by counsel to the parties and a visit to locus in quo, the learned trial judge found for the plaintiffs by accepting their traditional evidence and holding that there was a meeting of the Umunambu Village in which the defendants participated and that the arbitration at the meeting went in favour of the plaintiffs against the defendants. Judgment was, therefore, entered for the plaintiffs, by the learned trial judge, in the following terms –

“On the whole, I prefer the story of the plaintiffs to that of the defendants as to the origin of the land in dispute. In view of the foregoing, I hold that the plaintiffs have proved their case. There will therefore be judgment for the plaintiffs in respect of Suit No. 0/18/71. The plaintiff’s cross-action in (Suit No.0/133/71) is hereby dismissed.”

The defendants, being aggrieved by the decision, appealed to the Court of Appeal complaining inter alia that the visit to locus in quo took place after final addresses by the parties and after judgment had been reserved by the trial judge. It was also canvassed that the trial court was wrong in holding that the settlement by the meeting of Umunambu Village was binding on the parties.

In dismissing the appeal the Court of Appeal (Coram: Aseme, Aikawa and Sulu-Gambari, J.J.C.A.) held, per Aseme, J.C.A., first that what happened at the locus in quo did not occasion miscarriage of justice so as to disparage the judgment of F.G. Nwokedi, J. Secondly, that the settlement award made by the meeting of Umunambu Village was not illegal by reason of the fact that the dispute by the parties was referred to the Umunamba Village meeting by the Civil Defence Committee which existed in Biafra at the time of the Nigerian Civil War.

It is against that decision that the appellants brought the appeal in this Court raising the following questions for determination –

“(i) Whether the judgment of the High Court given as it was in matters which were improperly consolidated for trial ought to have been upheld by the court below.

(ii) Whether, in the absence of an application by either party to visit the locus in quo the trial, judge is entitled to decide to make such visit.

(iii) If the answer to Question (ii) is in the negative what is the effect of the decision by the trial judge to visit the locus in quo. suo motu.