Sunday Ukwu Eze & Ors Vs Gilbert Atasie & Ors (1999)

LAWGLOBAL HUB Lead Judgment Report

S.O. UWAIFO, JSC

This is an appeal from a judgment of the Court of Appeal, Port Harcourt Division given on 8 June, 1993. The plaintiffs as members of Umuololo family in Ogwe village of Ukwa Division instituted this action in a representative capacity at the High Court, Aba on 9 December, 1976. They sought three reliefs against the defendants, namely (1) a declaration of title to a piece of land they call Uzo Egbelu Ogwe made up of three portions of land known as Akami, Ogbaku, Ugiri Egbede-lyi; (2) general damages of N2,000.00 for trespass; and (3) perpetual injunction. After a full hearing, the learned trial judge gave a considered judgment on 26 March, 1985 in which he declared the plaintiffs entitled to the customary right of occupancy of the piece of land, awarded N500.00 as general damages and ordered perpetual injunction against the defendants.

The defendants raised a number of issues in their appeal to the Court of Appeal against that judgment. As I already indicated, judgment in the appeal was given on 8 June, 1993. The appeal was dismissed. The defendants (to whom I shall henceforth refer as appellants) again appealed and raised a number of issues as follows:

‘(a) Was the Court of Appeal correct in holding that the Plaintiffs / Respondents who did not prove their traditional history pleaded as root of title were entitled to a declaration of title to the land in dispute based on the rule in KOJO V. BONSIE

(b) Was the Court of Appeal correct in holding that the Plaintiffs/Respondents had exercised various acts of ownership in and over the land in dispute sufficient to warrant a declaration of title in their favour.

(c) Was the Court below right to have held that the boundaries of the land in dispute were proved.

(d) Was the Court of Appeal correct to have affirmed the trial Court’s approach to the evaluation of the traditional history pleaded and given in evidence by the Defendants/Appellants.

(e) Did the Court below misdirect itself when it held that

‘In the light of the evidence by both sides one is tempted to ask the question why is it that at all material time it is the Respondents who are claiming that they pledged or let portions of the land in dispute to others. There was no iota of evidence or even a mere assertion that the appellants made a similar disposition in respect of the land in dispute.’

and if so, did this lead to a miscarriage of justice?

(f) Was the Court of Appeal correct in its interpretation of the provisions of Section 132(1) of the Evidence Act in relation to Exhibits D and E and the document evidencing the alleged grant of Land to the 1st Defendant/Appellant which was rejected by the trial court?

In their statement of claim, the plaintiffs (to whom I shall henceforth refer as respondents) founded their title to the land in dispute on traditional history. The averments in support of this are contained in paras. 5, 6 and 7 which I reproduce hereunder:

‘5. From origin, the land in dispute had been the property of the plaintiffs through their great ancestor OLOLO. OLOLO deforested the land in disputed and exercised maximum acts of ownership over it including farming, lumbering, harvesting economic crops.

6. OLOLO established Obasi Miri shrine on the land and dug wells from which he obtained water. The wells so dug by OLOLO and the shrine are still visible on the land in dispute and are still being ministered to and used by the plaintiffs’ people.
7. The following heads of Umuololo family have controlled the land in dispute and sacrificed the Obasi Miri Juju established thereon that is to say: Ekule, Agu, Ukpo, Elechi, Okirima, Okebe, Nnah, Atasie, Owuogba and Gilbert Atasie the first plaintiff.’

In the course of the judgment of the lower court, Edozie JCA who delivered the leading judgment said: