Obasi Ibenye & Ors Vs Abram Agwu & Anor (1998)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C

In suit No. HU/7/74, Abraham Agwu and Onyebuchi Amaechi, for themselves and as representing Umuohu-Azueke community of Ndume-Ibeku sued Onyemakfe Nwakwuruibe, Odum Awomukwu and Nnesirionye Obike in the Umuahia Judicial Division of the High Court of former East Central State, claiming –

“(a) Declaration of title to all that lot piece or parcel of land known as and called ‘Okpula Umuohu’ situate at Umuohu, Azueke, Ndume, Ibeku within the Umuahia Judicial Division – annual rental value N10.00.

(b) N1,000.00 being special and general damages for trespass upon the said land.

(c) Injunction permanently restraining the defendants, their servants, agents and/or workmen from further entry upon or interference with the said land.”

The defendants were, with leave of court, allowed to defend as representatives of the Ihie community of Ndume-Ibeku. In another action, HU/8/74 instituted in the same court and about the same time, that is February 1974, Obasi Ibenye and Nwazue Agbara, as plaintiff, sued Josiah Nzeako, Rufus Nwankire, Michael Maduka and Osu Nwagwu, as defendants, claiming –

“(a) a declaration of title to the piece or parcel of land known as and called ‘Ugwute’ situate at Ndume lbeku in the Umuahia Judicial Division with annual rental value of N20.00;

(b) N1,000.00 damages for trespass to the said ‘Ugwute’ land;

(c) an injunction permanently to restrain the defendants, their agents, servants and or workmen from in any way interfering with the said land.”

Both sides sought and obtained leave of court to sue and defend as representatives of their respective communities, that is, Ihie and Umuohu.

Pleadings were ordered in each case, filed and exchanged. The parties, subject matters and claims being the same, the two actions on the application and with the consent of counsel for the parties, were by order of court consolidated with the parties in suit No. HU/7/74 being plaintiffs and defendants respectively in the consolidated suits.

Before trial commenced, learned counsel formulated issues which the trial court admitted as Exhibit 1. Seven witnesses testified for the plaintiffs and nine witnesses testified for the defence. At the conclusion of evidence the trial court inspected the land in dispute. Learned counsel for the parties addressed the court. In a reserved judgment, the learned trial Judge rejected the plea of res judicata raised by the defendants. He, however, found the case of the Umuohu-Azueke community not proved and dismissed their claims in HU/7/74. He found the case of the Ihie community proved and entered judgment in favour of their claims as modified by the learned Judge, in these terms:

“Clearly there is a preponderance of evidence in support of the finding that the ancestors of the plaintiffs in suit No. HU/8/74 i.e. the Ihie people granted parts of their Ugwute land to the ancestors of Umuohu people to make their homes. This was how the settlement of Umuohu people in the land in dispute was established. There is no evidence that the Umuohu people extended beyond where they have lived or exercised any acts of ownership beyond that area. Indeed roughly south east of their settlement is a vast area of empty farmland which remains part of Ugwute land of Ihie people not granted to the Umuohu people. It includes the area verged pink in defendants’ plan Exhibit D. The plaintiffs in suit No. HU/8/74 are entitled to a declaration of title in their favour over all that parcel of vacant land adjacent the houses of Umuohu people and roughly south east of the Umuohu Azueke village settlement. They will nor however for the reasons I have already stated be entitled to a declaration of title to the area where the Umuohu people have their houses in all that area roughly north-west of the vacant portion.

As for damages, nobody from the Ihie side has come forward to say that his crops were damaged. I am not satisfied that the Umuohu people caused any damages. However, in view of the posture by the Umuohu people that the land is theirs, I will make an order for permanent injunction restraining the defendants in suit No. HU/8/74 their relations, servants and/or agents from committing any acts of trespass in that vacant part of the land verged pink in their plan roughly south of where they live and which the court has found to be part of Ugwute land of the Ihie people.