Thomas Awaogbo & Ors V. Samuel O. Chukwu Eze (1995)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

The plaintiff’s claim against the defendants jointly and severally as contained in para. 28 of his statement of claim are:-

“(I) N100,000.00 general damages for trespass to that piece or parcel of land known as Offia Okaji, shown verged pink on Survey Plan No. L/D 556.

(2) An injunction restraining the defendants, their servants or agents from entering into or committing any further acts of trespass to the said plot of land shown verged pink on Survey Plan No. L/D 556.”

The defendants in their Joint Statement of Defence also counter-claimed against the plaintiff “the sum of N 10,000.00 being estimated value of the palm trees wrongfully destroyed and or tapped by the plaintiff and his agents.” The counter-claim was however due to some technical reasons at the trial, withdrawn and was accordingly struck-out.

As usual the case proceeded to trial after the filing and exchange of pleadings by the parties. At the trial the plaintiff testified and called three other witnesses while four witnesses gave evidence for the defendants.

The plaintiff’s case in short was that in 1959 the defendants made a customary grant of a large tract of virgin bush called “Offia Okali” verged green in the Plan L/D 556 (Exh. 2 in the proceedings) to him for purposes of exploitation and cultivation. The consideration for the grant under native law and custom was a lump sum payment of N 140.00 plus a reserved tribute of N20.00 payable yearly from the ninth year of occupation. He claimed that the customary grant was made in two plots and that the additional portion granted in 1964 for a further consideration of N60.00 covered the area edged blue also in his Survey Plan No. L/D 556.

He thereafter took effective control and proceeded to deforest the thick bush and developed it for modern farming at great expense. He paid the defendants annual tribute or rent up to 1974 as per receipt. It was during and after the civil war that defendants’ community hatched a plot to dispossess him of his farms. After 1974 the village community refused to accept the annual tribute of N20.00 any, longer from the plaintiff on the pre that the customary tenancy had run out since 1969. Plaintiff tendered accrued tributes of 1975-1978 through accredited agents and also produced same publicly in the village square but it was rejected on both occasions. When the land Use Act came into force in 1978 the community “conspired” with the Ikwo Local Government to misconstrue the Act as automatically divesting the plaintiff of his land and revesting same in the community and the Local Government.

The Ikwo local Government in July 1979 issued a Public Notice No. 20 of 1979 (Exh. 8) prohibiting the plaintiff and the entire community from further entry into the land. The local Government then proceeded to issue temporary occupation licenses to prospective farmers wishing to cultivate the “Offia Okaji” on payment to the council of N 1.25 per hectare, later however by another public notice No. 23 of 1979 (Exh. 9) the Public Notice No. 20 of 1979 (Exh. 8) was rescinded. Thereafter the defendants acting in concert forcibly entered and took over control and management of Offia Okaji farmlands belonging to the plaintiff.

In answer to the plaintiffs claim, the defendants said that the customary grant was for a specific terms of eight years and thereafter from year to year. They said the plaintiff had defaulted in the payment of the reserved annual rent and that the community lawfully terminated the customary grant. They relied on and tendered an agreement dated the 15th day of October, 1959 made between the parties which was received in evidence as Erxhibit 3. They denied making another grant to the plaintiff in 1964. They admitted going on to the plaintiffs land but contended again that this time they were put there by the Ikwo local Government on payment of fees of N1.25 per hectare and that the plaintiff was not in possession to have entitled him to sue for trespass.

In a reserved judgment delivered on the 30th day of July 1982, the learned trial Judge, Adimora, J. after carefully reviewing the evidence adduced before him found in favour of the plaintiff when he said:-

“I am satisfied that the plaintiff has proved his claim for trespass to Offia Okaji farmland in his peaceable possession and is entitled to both injunction and damages for trespass.”

The plaintiff was then awarded N1,500.00 damages against the defendants Jointly and severally. The defendants’ servants or agents were also restrained by injunction from entering the Offia Okaji farmland as shown in the Survey Plan L/D 556 dated 10/11/80 – (Exh. 2).

Dissatisfied with the judgment of the trial High Court, the defendants appealed to the Court of Appeal, Enugu Division. The following issues were submitted for resolution:-