Isaac Iloabuchi V. Cosmas Ebigbo & Anor (2000)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

This appeal raises the question: when is consolidation of suits for the purpose of trial desirable or permissible

In suit No. HOR/27/74 (formerly HO/16/72) in the Orlu Judicial Division of Imo State High Court, Cosmas Ebigbo (for himself and on behalf of Ebigbo family of Eziokwu, Urualla) had sued Isaac Iloabuchi for-

“1. Declaration of title to a piece or parcel of land called ‘Ala Ihunwa Ojukwu’ situate at Ezi-Okwu, Urualla in Nkwere Division within the Okigwe Judicial Division, of the annual rental value off 5(five pounds) and more particularly delineated on the plan to be tendered in evidence.

2. ‘a3 100 (One hundred pounds) damages for trespass.
3. An injunction restraining the defendant, his servants and agents from entering the said land and acting therein in any manner inconsistent with the plaintiff’s ownership and possession.”

Pleadings were filed and exchanged. The plaintiffs case in the action was pleaded in paragraphs 3, 4, 5, 6, 7. 8 and 9 of his statement of claim which run thus:

“3. The plaintiffs a descendant of the late Ugwa Duruobiaku. The late Duruobiaku had three sons: Nsofor, Onunkwo and Ugwa. Ugwa had a son called Nnedu, Nnedu had three sons: Ebigbo, Ezemeonye and Ignatius. Ebigbo was the father of Cosmas (the plaintiff). Romanus and Declan. The sons of Nnedu partitioned their father’s lands after his death in accordance with the custom of Urualla people. The plaintiffs late father got the land in dispute as one of his own shares.

4. The land which is known as and called Ala Ihunwa Ojukwu or Ala Nwa Ojukwu or Ala Ojukwu (hereinafter called the land in dispute) is the property of Ebigbo family and is situate at Ezi-Okwu Urualla within the Okigwe Judicial Division. The plaintiff inherited the kind from his father. The name ‘Ojukwu’ refers to the juju worshipped by plaintiff’s ancestors on the land.
5. The said land in dispute which is verged Red in Plan No. OKE/D51/72 is bounded as follows:

On the North by the lands or Mr. Anyalebeohi Onyeagu and Mr. Ekemezie Onycmaero both of Eziokwu Urualla. On the South by the land or Mr. Ngumooha Okafor and Ignatius Nnedu both or Eziokwu Urualla. On the East by the plaintiffs family land and leased to the Catholic Mission Urualla. On the West by the lands of Mr. Ngumeoha Okafor, Ukwuaku Oguekemma and Agbarakwe Alaka all of Eziokwu Urualla .

he salient features are also shown on the said plan which shall be tendered at the trial or the above suit.

6. The usufruct of the land in dispute was granted to one Osueke by the late Ugwa the plaintiffs grandfather. The late Osueke gave the late Ugwa a cock, a gallon or palm-wine and 4 kola nuts annually as rent, Ostleke had a son called Ukalla. When Osueke died, his son Ukatta continued to pay the annual rent by giving the cock, the gallon of palm wine and 4 kola nuts to the plaintiff’s family after the death of Ugwa the grantor. Ugwa and his descendants, reserved the right to revoke the grant at any time, according to the custom of Urualla people.

(a) In 1946, the plaintiffs father wished to exercise his right to revoke the grant of the land in dispute to Osueke’s family but one Alfred Ngerem the son of the late Ngerem approached the plaintiff’s father and asked him to allow him to continue to use the land as he (Alfred) had no place to farm. The plaintiff’s father, Ebigbo agreed and allowed him the use of the land in the terms of the old tenancy.

(b) On or about the 19th day of June, 1948, the plaintiff’s father died. In 1949, the plaintiff’s mother accompanied by one Nga, plaintiff’s cousin went to Mr. Alfred Ngerem and informed him of the family’s intention to take back the land in dispute. Mr. Alfred Ngerem’s relations: Iloabuchi Okoli (defendant’s father). AnunkoAgonsi and Patrick Agonsi were present. The said Alfred Ngerem formally surrendered the land to the plaintiff’s family.

(c) The plaintiff’s family in 1950 had cassava farms on the land in dispute and had been in possession since that date.

7. In 1956 when one Alaka Ikebudu, the father of Agbarakwe Alaka exceeded his boundary with the land in dispute, the defendant; Mr. Alfred Ngerem, Mr. Sunday Nnabuhe among others from Eziokwu Urualla took pan in settling the matter between the plaintiff’s family and Alaka. The defendant did not at any time during the arbitration mention that the land now in dispute belonged to him or his family.
8. The plaintiff’s father gave a portion of the ‘Ala nwa Ojukwu’ not rented out to the late Osueke, to the Catholic Mission at Urualla, and a part of the present St. Michael’s premises at Urualla is on the said land.
9. Sometime in 1971, the defendant and the plaintiff’s uncle began to quarrel over the said land without reference to the plaintiff. The plaintiff returned from Onitsha and heard what had happened and he intervened. He reported to the Amalas and Ndinze in Uzuakoli Urualla according to the custom in Urualla. The Amalas and Ndinze invited the parties to appear before them. The defendant and the plaintiff agreed to abide by the decision of the Amalas and Ndinze. The defendant made two appearances and refused to attend the next meeting. On or about the month of June, 1971 the defendant entered into the land without the plaintiff’s leave or licence and harvested some bunches of palm fruits.”

The defendant, Isaac Iloabuchi, pleaded in reply:

“5. The defendant denies the allegations in paragraph 4 0f the statement of claim, referring to inheritance of the land in dispute or any part thereof by the plaintiff. The land is defendant’s land and is named ‘Ala Ojukwu’ like other people’s land in the area after Ojukwu Palm Tree Juju which is worshipped by the whole Umuzoije kindred and never by plaintiff’s ancestors as is purported. The Ojukwu palm tree which had died sometime ago now stands as a stump at the point where James Ugochukwu’s, Ukatu Ugochukwu’s and defendant’s lands meet in the Eastern boundary of defendant’s land.

6. The defendant’s Ala Ojukwu land is shown in defendant’s plan No. E/CA/559/72 and there verged blue. The plaintiff’s Plan No. OKE/D51/72 has been superimposed on defendant’s plan and marked out and verged yellow therein and the plaintiff is laying claim to only part of defendant’s land. The defendant’s plan depicts the area correctly and accurately. The plaintiff’s plan appears to have been made by oral description of the plaintiff as neither defendant nor the fellow villagers of the parties or any of them witnessed the survey on which plaintiffs plan was based. Defendant’s plan was made in the presence of fellow villagers with neighbouring owners standing on or indicating their boundaries with the defendant.

None of the neighbouring owners has a boundary with the plaintiff who has no land at all in the area of defendant’s land. One Ignatius Nnedu plaintiff’s uncle is falsely presented by plaintiff as a neighouring owner. The said Nnedu has no land at all near the land of defendant. The said Nnedu is in fact disputing with plaintiff over the defendant’s land each attempting to lay claim for himself to this defendant’s land.