Onwe Onu & Ors V. Oke Agu & Ors.(1996)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

The plaintiffs, in paragraph 17 of their Amended Statement of Claim, claimed jointly and severally against the defendants as follows:-

“(a) A declaration that the plaintiffs and defendants are entitled as joint owners or co-owners under their native law and custom to all that piece or parcel of land called “Egu Ojo” and more particularly delineated on Plan No. E/GA1367/73 (12605) filed or tendered in this suit by the plaintiffs and described therein as Ngbo and Nkalaha Land (or farmland) and verged red.

(b) A declaration that the plaintiffs are entitled to share from all the money paid or to be paid by the Nigerian Cement Company Limited for the use and occupation of a portion of the said Egu Ojo land more particularly delineated on Plan No. E/GA1367/73 (12605).

(c) Against the seventh defendant only, an account of all the moneys received from the Nigerian Cement Company Limited for the use and occupation of a portion of the said Egu Ojo land more particularly delineated on Plan No. E/GA1367/73 (12605) and the payment of the plaintiffs’ share to them.

The plaintiffs are natives of Umuogodo-Osha Ngbo and have sued for themselves and on behalf of the people of Umuogodo-Osha. The suit was originally against the 1st to 5th defendants (hereinafter called the 1st set of defendants) for themselves and on behalf of Amaezegba Community. By order of the High Court the 6th to 8th defendants (hereinafer called the 2nd set of defendants) were joined for themselves and as representing the people of Okposi kindred, Obilogu quarters. The land the subject matter of this suit and over which joint ownership is claimed is called “Egu Ojo” by the plaintiffs, and verged red in their plan Exhibit A. The 1st set of defendants called it “Agu Ufo-o” in their statement of defence and verged yellow in their plan Exhibit D. A small southern portion of it shown and verged blue was pleaded and conceded to be jointly owned by the plaintiffs and the defendants. The 2nd set of defendants on the other hand call it “Agu Okposi”. It is verged pink in their plan Exhibit N. The plaintiffs based the declarations sought by them on traditional history as pleaded in paras. 5, 6, 7, 8 & 9 of the Amended Statement of Claim. They read as follows:-

“5. The said land in dispute is being used in common or jointly from time immemorial between the people of Umuogudu Osha, Ngbo, the plaintiffs, on the one hand, and the people of Amaezegba, Nkalaha, the defendants, on the other hand.

6. Traditional history shows that the defendants ancestors originated from Umuogudu Osha, Ngbo, they were people who committed certain offence against natives of their quarters and in order to flee from justice ran towards the outskirts of Ehu Amufu; the plaintiffs’ ancestors when tired of pursuit of the offenders would then abandon it saying “Nkaa lara Eha” in Ibo meaning leave this for Eha, and Nkalaha derives its name from “Nkaa lara Eha”.
7. In time beyond memory the offspring of the fugitive offenders looked on the people of Umuogudu-Osha as their brothers and vice versa and as both communities increased and multiplied they spread into the said land in dispute where they built living houses and farmed at random.
8. From then on the two communities have continued to regard themselves as co-owners of the said land such was their spirit of friendliness and/or brotherliness that they inter-married, ate together, never killed each other, and most important of all, never bothered to recognise a division by creating a boundary; in fact, when in/or about 1949, the then Divisional Officer for the area, Mr. O.P. Gunning set out to curb inter-village land dispute by creating permanent boundaries between them, the representatives of the plaintiffs and defendants villages declined to have a boundary demarcated for them.
9. Under the native law and custom of all the communities in Ishielu Division it is regarded as a mark of friendly and brotherly relationship for two communities to exist or co-exist without having a common boundary and under the aforesaid native law and custom where two communities live together peacefully on the same land without a boundary they are regarded as co-owners of the said land.”

The two sets of defendants deny this history. While the 1st set of defendants contended that the land in dispute belongs to the entire Amaezegba community and that there is nothing like Okposi kindred in Amaezegba, the 2nd set of defendants claim that they are of Okposi kindred in Amaezegba and that the land belongs exclusively to them.

In a reserved judgment the learned trial Judge after a consideration and evaluation of the entire evidence led before him concluded on pages 139-140 of the record thus:-

“In conclusion I desire to summarise as follows. The 1st and 2nd set of defendants belong to Amaezegba Community of Nkalaha. Throughout the period of negotiation for the acquisition of the land in dispute they had acted and operated as one autonomous unit to wit the Amaezegba community. Compensation and surface rents paid by Nigercem were collected by them as one unit. They lived and farmed together within the land in dispute as joint owners. Although there are some scattered forms of the plaintiffs within the land in dispute, on the totality of the evidence I am of the considered view that the plaintiffs evidence on traditional history and acts of ownership and possession do not contain sufficient material to entitle them to a decree of joint ownership to the entire area verged red in their plan Exhibit ‘A’, that is to say the land in dispute. But there is an admission by the defendants regarding the area verged blue in Exhibit ‘D’. This in my view establishes joint ownership of the area verged blue by the plaintiffs and the defendants. That being so, this Court declares and orders as follows:-

1. That the plaintiffs and the defendants within the limits of the Land Use Decree are jointly entitled to a customary right of occupancy of the piece of parcel of land which is verged blue in Plan L/D410 and admitted in evidence case as Exhibit ‘D’.
2. Plaintiffs’ claim to the entire land called Aguoja by the plaintiffs and verged red in Plan No. E/GA1367/73 and admitted as Exhibit ‘A’ excepting the area verged blue in Exhibit ‘D’ is hereby dismissed.
3. Plaintiffs claim for declaration that the plaintiffs are entitled to share from all the money paid or to be paid by Nigercem for the use and occupation of a portion of the land in dispute in this case and claim for an account against the 7th defendant are dismissed.”

Dissatisfied with the judgment of the High Court the plaintiffs appealed to the Court of Appeal. In a unanimous judgment the Court of Appeal dismissed the appeal with the exception of the declaration made by the High Court in respect of the area verged blue in the Plan Exhibit D which was set aside (See Order No.1 of the High Court above).

Aggrieved by the decision of the Court of Appeal the plaintiffs have further appealed to this Court. The parties in compliance with the Rules of Court filed and exchanged briefs of argument. These were adopted and relied upon at the hearing where oral submissions were also made.

Dr. Ajogwu, learned counsel for the plaintiffs in his brief formulated the following issues for determination.

(a) Where in a land matter the plaintiff formulated his case on a particular piece of land (cause of action) would it be proper traverse for the defendant to base his evidence on a different piece of land