Ezekiel Nneji & Ors. V. Chief Nwankwo Chukwu & Ors. (1996)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C. 

This is an appeal from the judgment of the Court of Appeal, Enugu Division dated 12th April, 1990. The action was commenced by the appellants and the claim was for;

“(1) N1,000.00 (One Thousand Naira) being damages for trespass.

(2) A perpetual injunction to restrain the defendants, their servants, agents or privies from further acts of trespass on the said land.”

The plaintiffs call the land in dispute” ANIAJAMANU” while the defendants call it “Azu Agu”. The plaintiffs assert that it belongs to them (i.e. Enugu and Achara families in Amodu Awkunanaw). The defendants who are members of Umueze village in Awkunanaw also assert ownership of the said land. The plaintiffs sued for damages for trespass and injunction. Both parties claim the right to possession by virtue of their respective titles. The issue of competing titles must first be resolved for the law ascribes possession to one of them with a better title. See Umeobi v. Otukoya (1978) 4 SC, 33; (1978) 1 LRN at 172 at 180-181.

Both parties pleaded traditional history, acts of ownership and possession. The plaintiffs in addition relied on section 145 of the Evidence Act, while the defendant relied on section 45 of the said Act.

The plaintiffs stated that they derived their title to exclusive possession of the land in dispute from time immemorial from Amodu who shared his land into two, that Amodu gave two of his four sons named Enugu and Achara, a half and his two other sons, Ezinato and Umuoha the other half and that the defendants ancestors were strangers who came from Akpugo and were granted the area where they now occupy by the ancestors of the plaintiffs.

The defendants admitted that Amodu was the plaintiffs’ ancestor but denied that the land claimed by the plaintiffs in this action is a portion of a larger parcel of land which the plaintiffs inherited from the said Amodu. They denied being strangers in Awkunanaw and that neither themselves nor their ancestors suffered any disabilities customarily associated with stranger or “awbia” in local parlance. They maintained that they and the plaintiffs have a common progenitor, a man called Akagbe who founded Awkunanaw and that Awkunanaw is not a name of a person but a word denoting merger of four communities. They further stated that Akagbe who founded Awkunanaw was survived by five children whose descendants form the villages now known as Umueze (defendants village), Obuofia and Akagbe Ugwu (compromising Obuagu, Amechi and Amodu) the plaintiffs village) all being some of the communities which together are known as Awkunanaw.

Evidence was led by both parties. At the conclusion of the case and after a purported evaluation of the evidence, the learned trial Judge found in favour of the plaintiffs.

The defendants, being dissatisfied with the decision of the trial court, appealed to the Court of Appeal, Enugu Division on a number of grounds and that court in a unanimous decision allowed the appeal and dismissed the plaintiffs’ claim.

It is against that decision that the plaintiffs have appealed to this court. Briefs of argument were filed and the appellants submitted the following issues for determination in the appeal:

“(i) Whether circumstances existed in this case to warrant a re-evaluation of the evidence by the Court of Appeal.

(ii) Whether in view of the evidence and findings on possession of the land in dispute the Court of Appeal was right to have stated that section 45 of the Evidence Act did not apply or was not available to the plaintiffs.

(iii) Whether in view of the nature of the case, particularly the fact that evaluation of evidence in this case involved the issue of credibility of the twelve witnesses called by the parties and the complexity of the case, it was a proper case in which the appellate court could, even on being satisfied that the trial court did not evaluate the evidence properly, have evaluated the evidence itself.