George Okegbe & Ors Vs Nnadi Chikere & Ors (2000)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C.

In the Orlu Judicial Division of the High Court of Imo State, there were two suits. One, suit No. HOR/24/76, was by one George Okegbe and others, suing as representatives of the Okwu kindred of Umuokpo village, against one Nnadi Chikere and others, sued as representatives of the Umuodudu village. Both villages are in Nkume, in Nkwere Division. The other, suit No. HOR/48/82, was by one Nwashigwalam Okoroemume and others, suing as representatives of Umuodudu family in ‘Oriri Umueze Nkume’, against one Achikamuonye Ike and others, as representatives of ‘the people of Umuokpo Okwu’. The two actions were consolidated. The Okwu kindred, plaintiffs in HOR/24/82 (“the first suit”) became the plaintiffs in the consolidated suits, while the “Umuodudu kindred” who were the plaintiffs in HOR/48/82, (“the cross action”) became the defendants in those suits. The plaintiffs’ claim was for a declaration that they were entitled to the customary right of occupancy in respect of a piece of land “known as and called ‘UHU OKWARA OHONAOBI’ situate at Umuokpo village Nkume”, damages for trespass, possession and injunction. By their cross-action the defendants sought a similar declaration in respect of the same land which they described as ‘Uhu Umuodudu’ situate at Umuodudu in Nkume”, damages for trespass and injunction. The trial Judge, Ononuju, J., on April 27 , 1990, dismissed the cross-action and non-suited the plaintiffs. The plaintiffs did not appeal from the decision of the learned Judge whereby they were non-suited. However, the defendants appealed to the Court of Appeal who on June 2, 1994 dismissed their appeal. This is an appeal from the decision of the Court of Appeal. In this judgment, for convenience, the plaintiffs in the High Court, who are respondents in this appeal, will be referred to as “the plaintiffs”, and the defendants in the High Court, who are appellants in this appeal, will be referred to as “the defendants”.

The plaintiffs’ case, in a nutshell, was that the land in dispute was a portion of a large area of land called ‘Uhu Okwara Ohonaobi’ which, is owned by the plaintiffs by successive descent from their ancestor, one Okwu, from whom it had descended successively to the members of their kindred. They claimed that members of their family lived and farmed on the land, and have been harvesting all the economic trees thereon from time immemorial. The story was told that the defendants were from a place called ‘Olori Umueze Nkume’ and that the defendants’ kindred were called Olori Umueze. Evidence was given that the defendants had no land within or around the land in dispute. It was alleged that the defendants’ ancestors approached the plaintiffs’ ancestors individually when, having run away from their village upon the murder of a person in Umuduru in Umueze, they returned to find that their land at Olori Umueze Nkume had been confiscated by the family of the man killed by the defendants’ ancestors. It was the plaintiffs’ case that portions of the land in dispute were granted on individual basis to the ancestors of the defendants by ancestors of the plaintiffs, also on individual basis. Each of the ancestors of the defendants brought palm wine and kola nuts when shown where to live within the land. It was the condition of the grant that each grantee should work for the grantor every ‘Orie market day’ and present a cock to his grantor whenever the grantee was shown where to farm and that each grantee must be of good conduct. Notwithstanding the grants, the grantors continued to harvest all the economic tress on the land where the defendants live. This dispute arose because the 2nd defendant chased away one Baby Nmezie and someone who had come to harvest palm fruits for her on the land, and proceeded to cut down palm trees and other economic trees of the land.

For their part, the defendants claimed that they and the plaintiffs had a common ancestor, one Nkume, and claimed title to the land through one Eze whom they described as one of the four sons of Nkume. They confirmed the story that someone was murdered in Umuodudu, but only to the extent that some members of their kindred committed the murder and had to run away to a place called Atta. They claimed that several members of their kindred did not run away, and that those who did were given back their land upon their return.

The record of the High Court and the judgment of the trial judge showed that after evidence had been taken in the matter and on the day fixed for judgment, the court, the parties and their counsel went to the land in dispute to see the northern boundary of the land in dispute. The purpose of the visit, as recorded in the Judge’s noted, was for the 1st plaintiff to show the area of land shown to the defendants to live and the area of land trespassed upon by the defendants. The trial Judge wrote that he derived much help from the visit to the land.

The basis of the decision of the trial Judge was, succinctly put in his judgment. In regard to the conflict in the evidence of the parties as to whether there was a grant to the defendants’ ancestors or not, he came to the conclusion as follows:

“Even though the defendants deny the issue of grant but they confirmed the story of Umuodudu killing some one from Umueze and ran to Atta where they stayed for some time before returning to Olori in Umueze. The defendants admit that where they live share a common boundary with the land of the plaintiffs. It is agreed on both sides that the defendants are from Olori D.W.1 admitted that their own Olori is of the same Olori where the plaintiffs alleged the ancestors of the defendants were living before they ran out. D.W.1 also admitted that there is a village separating the two Oloris called Umueke (sic). From the above, I am inclined to believe that the Olori near to the plaintiffs, i.e the defendants were shown where they now live in the plaintiffs’ land when they returned from Atta where they ran to after the murder incident. Otherwise, how could they leave their kith and kin at Olori, cross another village to come to live where they now live. I am more inclined to believe the plaintiffs that where the defendants now live is within their Umuokpo village.

“When the court visited locus, it was shown where the defendants ancestors were living before and this was not challenged by the defendants. Other members of Olori kindred still live there till today.”

Having come to that conclusion, it was inevitable that the learned Judge should dismiss the defendants’ cross-action.

In regard to non-suiting the plaintiffs, the learned trial Judge had this to say:

“If individuals of the plaintiffs’ ancestors granted their individual portions of land to individuals of the ancestors of the defendants at different times and on different terms, and the land in dispute is not communal land, I hold the view that each plaintiff should bring a separate action to claim from each defendant the land granted to the defendants’ ancestors individually to live”.

Besides, in regard to the claim for forfeiture, the learned trial Judge said:

“Again Exhibit’ A’ did not show the portions of the land in dispute granted individually to the ancestors of the defendants to make court make an order for forfeiture as the defendants are claiming the land in dispute as their own.”

The defendants’ appeal to the Court of Appeal turned on facts. Notwithstanding that Rowland, JCA, who delivered the leading judgment of that court, apparently out of abundance of caution having regard to the briefs of argument, dealt extensively with several points, citing copious authorities in the process, it is manifest that the material issues, decisive of the appeal before that court were whether the trial Judge had properly evaluated the evidence and whether on the evidence before him, he was right in his finding that the defendants’ ancestors were grantees from the plaintiffs’ ancestors. The conclusion arrived at by Rowland, JCA., and concurred in by Edozie and Onalaja, JJCA, was conclusive of the appeal when he said with reference to the passage from the judgment of the trial court, first quoted above, that: