Chief Timothy Agbaka & Ors V. Chief Jeremiah Amadi & Anor (1998)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C. 

The plaintiffs instituted an action in the High Court of Rivers State holden at Port Harcourt against the defendants seeking the following reliefs:-

“1 Declaration of title over all that piece or parcel of land known as and called ‘Amadi Aruwari Kiri’ situate at Amadi Ama which is more particularly shown and demarcated and verged orange in the plan No. OK.294 filed by the plaintiffs in this suit.

2. N5000.00 as general damages for trespass on the said plaintiffs’ land known as and called’ Amadi Amwari Kiri’ at Amadi Ama.
3. Possession of the area of the said land trespassed on by the defendants.
4. Perpetual injunction restraining the defendants by themselves or their agents from committing any further acts of trespass or in any way interfering with the plaintiffs’ possession, use and enjoyment of the said land.”

The defendants filed a counter-claim which reads:

“The defendants for themselves and on behalf of the Ogbanga family seek a declaration that in all the circumstances of this case the court, in the exercise of its equitable jurisdiction, should allow the defendants to remain, under native laws and custom or on purely equitable grounds on the land in dispute”.

Pleadings were ordered, filed and exchanged. The case proceeded to trial and on 15-12-80, the learned trial judge, Dagogo Manuel, J. in a reserved and well considered judgment found for the plaintiffs as claimed in paragraph 16 of their statement of claim. The defendants’ counter-claim was dismissed. The defendants who were aggrieved by the decision of the learned trial judge appealed to the Court of Appeal, Enugu Division. That appeal was unsuccessful hence a further appeal to this court.

The case of the plaintiffs in the trial court was based on traditional evidence. They traced their ancestry to one Inimgbatuboni who lived and died in Ogoloma. He was survived by eight sons – Amadi, Iringi, Worianume, Olunwa, Onyekwere, Josiah, Aliko and Fimie. Amadi was the eldest They were traders and fisher-men.

They were in need of land for expansion. On one of their trading visits to Diobu market they sighted a piece of land near Rainbow Town. They approached the family of Ira of Orogban Village in Diobu who granted the land to their family. They made the customary donation of fish and wine before the land was granted to them. They moved in and occupied the land, each son carved out an area of the land for himself. The area was named after Amadi the oldest and most influential amongst the children. This was how the land got its name “Amadi Ama” meaning Amadi’s village. Some years after the founding and settlement in this village by the children of Inimgbatuboni, one Ogbonata and Okorie who were natives of Agbaka’s compound in Ogoloma approached the founders of the land and requested to be given some land to settle on. They were accompanied by one Okoronkwo the father of the 1st, 2nd and 3rd defendants. An unapportioned area lying at one end of the village was given to them to settle. A foot path separated this area from the rest of Amadi’s compound. This footpath leads to the sea where as a warrant chief Amadi kept his ceremonial and war canoes. This area is called “Amadi Aruwari Kiri” meaning the land where Amadi kept his canoes. Amadi built other houses on the land. His wife Enaborafaka cultivated a portion of the land and she lived, died and was buried on the land. The area given to Ogbonata and Okorie (appellants’ ancestors) is called “Omgbanga Polo” or “Omgbanga Compound” meaning those who begged to stay. The name later changed to be “Ogbanga Compound”. Odundum trees mark the boundary of this area with the rest of Amadi Aruwari Kiri. There had been an arbitration and two court actions since 1959 when the defendants began their acts of trespass. The plaintiffs are the sons of the original founders – Amadi.

The defendants case is that the land which the plaintiffs call “Amadi Ama” is infact called “Monima” and it is part of Ogbanga Compound in Moni Ama. It lies next to the waterside. They claim ownership of the land and that they have lived on it since 1891. The 1st defendant and his family have lived on the land and was born 80 years at the time he testified. It was part of the 1st defendant’91s case that the land was granted to them by Osa family of Diobu. They have farmed on the land and planted coconut, plantain, bananas and cocoyams on the land without disturbance from anyone. First defendant testified that there is no area called Aruwarikiri in Monima. The houses of the 3rd and 4th defendants who are members of Ogbanga family are on the land in dispute. The 1st defendant knew Enaborafaka but denied that she died on the land. He knew Amadi personally and described him as a wealthy and influential chief and that Amadi Ama was named after Amadi. He testified that Aruwarikiri is the name given to the place ceremonial canoes are kept but could not say if Amadi had any ceremonial canoe. He testified that it was not correct that it was the plaintiffs who granted the land to them.

Brief of argument was filed by the defendants whom I will refer to as the appellants in this judgment. The plaintiffs who are the respondents herein filed no brief of argument. They were absent but represented by counsel at the hearing. He was not heard in oral argument since the respondents failed to file their brief of argument. See Order 6 rule 9 of the Supreme Court Rules. Three questions raised from the grounds of appeal for determination by the court are –

“(1) Whether the learned Justices of the Court of Appeal were right in striking out grounds 3 and 10 of the grounds of appeal without considering the issues raised on them.

(2) Whether the learned Justices of the Court of Appeal were right by agreeing with the trial Judge’s decision that the appellants’ witnesses are untruthful witnesses based on the statements made in the earlier proceeding.

(3) Whether the appellants have established long possession and acts of ownership as to entitle them to judgment on their counter-claim”.

The learned counsel for the appellants submitted that the respondents’ counsel raised a preliminary objection to the grounds of appeal in their brief of argument but did not file any notice of preliminary objection as enjoined by Order 3, rule 15 of the Court of Appeal rules. He submitted that the court below was in error in taking the objection without the respondent filing the notice of preliminary objection. He cited the case of Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 at 297. It was his further contention that Order 3, rule 2(2) was complied with because the particulars were incorporated in the grounds of appeal and that there is no rule of law which says that the particulars must be stated under a separate paragraph. He cited the case of Lauwers Import – Export v. Jozebson Industries Ltd. (1988) 3 NWLR (Pt.83) 429 at 431 and Atuyeye & Ors. v. Ashamu (1987) 1 NWLR (Pt.49) 267 at 282-283.