Anyim Mba & Ors. V. Agbafo Agu & Ors. (1999)

LAWGLOBAL HUB Lead Judgment Report

O. EJIWUNMI, J.S.C. 

The Appellants, as plaintiffs in the trial Court commenced this action against the Respondents, who were the Defendants. In that case the appellants at the Enugu High Court claimed against the respondents for:-

(i) A declaration to the Customary Right of Occupancy to a piece of land known as “Agu Ofia Amaeze” in the Awgu Local Government Area of Anambra State.

(ii) N50,000.00 being General damages for trespass; and

(iii) Perpetual Injunction restraining the defendants from committing further acts of trespass on the said piece of land.

After pleadings were filed and exchanged, the learned trial Judge, then heard the evidence for the parties to the action. For the appellants, five witnesses gave evidence in support of their claim. The respondents also called two witnesses. Some documents were also tendered in the course of the proceedings. At the conclusion of the trial, the learned trial Judge delivered a considered judgment at the conclusion of which he upheld the appellants’ claim.

The respondents who were dissatisfied with the judgment of the Court of Appeal have appealed to this Court. With the grounds of Appeal properly filed, the appellants filed and served the appellants’ brief. Upon being so served, the Respondents also filed their respondents’ brief.

But before I consider the issues set forth in the briefs so filed, I would set down, howbeit briefly, the rival claims of the parties to the disputed land.

The appellants brought their suit as the representatives of Amaeze Ohafia Oduma Community. They pleaded that their ancestors first settled on the land and that over the years, the land in dispute has descended in succession through their different ancestors until finally falling in the possession of the present appellants. The diverse acts of possession pleaded included farming on the land, installation of their juju shrine called “Ngwobe Ofia” on it, letting the land to customary tenants and granting rights to persons to fell timber therefrom. It was pleaded that on or about June, 1975, the respondents and their agents broke into the said land and committed thereon several acts of trespass. It was this that prompted the appellants to bring their action. The Respondents in their Amended Statement of Defence raised a plea of estoppel per rem judicatam. Their pleadings in this regard are in paragraph 6, 9 and 12. They read thus:-

“6. The defendants deny that the land in dispute is correctly represented in the plaintiffs’ survey plan No. MEC/16/80 of 10/1/80 and further states that it is correctly (sic) shown in the defendants plan FCO/D23/80. Furthermore, the streams that nearly encircle the land in dispute are Ugene, Obe steams and Esu and Awuna rives of which Obe stream forms the boundary between the plaintiffs land and the defendants’ land just as the Esu and Awuna rivers form the boundary between the defendants’ land and Uburu people’s land. Oba stream has from time immemorial formed the boundary between Awgu and Nkanu.

9. Further on paragraph 2 of the Statement of Claim the defendants plead the defence of res judicata because by the judgment of Mhurubu Native Law Court in suit No. 149/56 in Civil Suit No. 206 of 29th July. 1956 delivered on 24/12/56 the land in dispute was declared the bona fide property of Obodo Apuru Nkereti of which the defendants are members. The action was between the people of the plaintiffs and the people of the defendants.
10. The defendants deny paragraph 10 of the Statement of Claim in so far as it states that the land in dispute belongs to the plaintiffs. Furthermore, Obe stream separates the plaintiffs land from the land in dispute and the land they occupy has no direct connection with the land in dispute.”

It is upon the facts so pleaded and the evidence led by the parties that the learned trial Judge upheld the claims of the appellants. It must also be noted that the respondents by their pleadings raised the plea of estoppel per rem judicatam to the effect that there is a binding judgment of the Mburubu Native Court Exhibit C, in respect of the land in dispute and between the same parties, the learned trial Judge however decided that plea was not established by the respondents. This is despite the fact that the appellants did not file a reply to that averment of the respondents.

Although, the respondents had raised some issues on the Respondents’ brief, I will for the purposes of this appeal consider this appeal upon the basis of the issues raised in the appellant’s brief.

They are as follows:.

“(i) Whether the Court of Appeal was right in basing its decision in the appeal on an issue not raised in either the Notice and Grounds of Appeal or even in the appellants Brief