Christopher Emodi & Ors Vs Akunnia Right Kwentoh & Ors (1996)

LAWGLOBAL HUB Lead Judgment Report

ONU, JSC. 

This appeal which turns purely on the facts is a classical example of yet another concurrent findings of facts by the two courts below which commenced its journey by a writ of summons issued at the High Court of Anambra State holden at Onitsha at the instance of the plaintiffs/appellants against the defendants/respondents on 7th October, 1980. It is in respect of a parcel of land which they (plaintiffs/appellants) referred to as Ani Ozala in Onitsha, culminating ultimately in their reliefs couched thereto in paragraph 24 of the Amended Statement of Claim as follows:

‘(a) Whereof the plaintiffs claim from the defendants jointly and severally the sum of N50,000.00 as General Damages for trespass.

(b) Injunction to restrain the defendants, their Servants or Agents from trespassing or entering the said land or disturbing the plaintiffs exclusive rights of possession over the said land.’

Onwuamaegbu, J. (of blessed memory) after hearing the evidence of witnesses and addresses of counsel, dismissed the plaintiffs/appellants claims on 22nd May, 1986. Their appeal to the Court of Appeal, Enugu Division was similarly dismissed on 16th March, 1989 in a well considered judgment. Hence, their further appeal to this court.

But first the brief facts of the case as presented in the two lower courts. The plaintiffs/appellants (hereinafter referred to simply as plaintiffs) pleaded and relied on traditional history. In this regard, their claim was that their ancestor called Oreze was one of the emigrants from Benin, about four centuries ago and their leader was Ezechima. That Ezechima who was regarded as the king or Obi of the group, did not cross the River Niger but later died at a point on their journey called Obior.

That on the death of Oreze, his son led the group which, on eventually crossing the River Niger, met people called Oze, the original inhabitants of Onitsha whom they fought and defeated. Thereafter, Onitsha land was occupied by and shared among the people who remained as exclusive owners in prior possession of Ani Ozala, part of which was in dispute. That Oreze in addition got the portions called Okpoko and Woliwo. The plaintiffs demonstrated by pleading and giving evidence that they are the direct descendants of Ezechima through Orezes lineage.

They further said that it was Uyamasi, a descendant of Oreze who harboured and quartered the defendants/respondents ancestor Idoko and his entourage at the request of0mozele, leading to respondents/defendants eventual assimilation with the plaintiffs forebears in their village known as Obikporo, otherwise called Woliwo. It was agreed on all sides that part of the Ani Ozala land was acquired by the Government in the year 1910. There was a dispute however as to whom the rents had been paid ever since the acquisition. There was a case of 1924 (Exhibit 2A) which did not decide the issue as the Station Magistrate who heard the case was said in a later case (Exhibit 16) not to have had jurisdiction to adjudicate on the ownership of land. Significantly, however, it is worthy of note that the land alleged to have been acquired by the Government and over which rents were allegedly paid to the plaintiffs through successive Obis of Onitsha, is outside the land in dispute in the instant case. This is because the land the plaintiffs claim is in dispute is the land edged PINK in the plaintiffs Plan (Exhibit 1) which had never been acquired by the Government.

The defendants/respondents (hereinafter in this judgment referred to as defendants for short) on the other hand, while they admit the history of the migration from Benin, contend that Oreze originally lived on Okpoko land after crossing the river Niger. They denied that Oreze was a son of Ezechima but say he was his brother. They say further that Ezechima was the first Obi or king of Onitsha, being the leader of those emigrants from Benin. They conceded that later, their ancestor led by Idoko, came from Igala. That this was during the reign of Eze Aroli, the 8th Obi of Onitsha. It was this Obi who put the defendants ancestors on Ani Ozala land. At a later date, they were asked to move to Obikporo land, a place then reputed to be the sanctuary for witches. In acceptance of the challenge and to show their prowess in defiance of the witches through their Egugu masquerade, they moved to Obikporo. As later transpired, the plaintiffs moved from Okpoko to live with defendants at Obikporo. The defendants in effect denied the plaintiffs assertion that they (plaintiffs) were ever in exclusive possession of Ani Ozala. Rather, they say that the said land originally belonged to them exclusively but later became the communal property of both parties after the ‘assimilation’ of Uyamasi into their (defendants) sub-family of Isolo.

They also denied that the plaintiffs collected and enjoyed rents accruing from the acquisition of part of the land.

The learned trial Judge, although in his reasoning would seem to have run away from some obvious facts and in his consideration of the principles of law applicable appeared to have failed to apply the test in Kojo II v. Bonsie (1957) 1 WLR. 1223 in relation to traditional history by looking for acts in recent times adduced by both parties to ascertain which of the traditional histories as to who of the two settled on Ani Ozala first is more probable, albeit arrived at the right conclusion when he found nothing in their (plaintiffs) traditional evidence to commend their case to him and so, as hereinbefore pointed out, dismissed it. It is in the court below upholding that judgment, that has led to the further appeal to this court premised on four original grounds of mixed law and facts. Later, with leave of this court, the plaintiffs sought and were duly granted leave, to file four grounds, three of which are of mixed law and facts and one, solely of law. Further, the plaintiffs sought and obtained leave to argue an additional ground of law.

The parties filed and exchanged briefs of argument in accordance with the rules of court. The plaintiff and defendants aside from filing their respective appellants and respondents briefs, the plaintiffs also filed a Reply brief. At the hearing of this appeal on 20th November, 1995, the document filed by learned Senior Advocate for the defendants, Dr. Ilochi Okafor, headed respondents Reply Brief on appellants Additional Ground of Appeal was, upon the application of the learned Senior Advocate, allowed to be argued under the nomenclature Additional respondents brief. In their brief of argument, the plaintiffs formulated the following four issues for our determination:

(1) Were the learned Justices of the Court of Appeal not in error when they failed to evaluate properly the evidence of recent acts of possession adduced by the parties after it had found that the learned trial Judge had omitted to perform the exercise in accordance with the test or Kojo v. Bonsie (1957) 1 WLR 1223.

(2) Whether the learned Justices of the Court of Appeal were not in error to have suo motu introduced an issue which was never part of the issues contested by the parties before them or at the trial when they held that the appellants had not established with certainty the identity of the land in dispute, when in fact both parties had by their pleadings and their evidence identified the bone of contention and the learned trial Judge made a definite finding on it in any way shown to be perverse.