Umeano Achiakpa V. Nduka (2001)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

By a writ of summons issued on the 1st day of June, 1976, the plaintiffs, for themselves and on behalf of the Umuonewe family of Isikwe Achi in Anambra State instituted an action jointly and severally against the defendants of Umunduka family of Obinagu, Isikwe, Achi at the Enugu Judicial Division of the High Court of Justice, Anambra State claiming as follows:-

“(a) Declaration of title to the pieces or parcels of land known as “MASA” and “OBU” shown in survey plan No. FCO/125/76.

(b) N1,000.00 (one thousand Naira) being general damages for trespass and

(c) Injunction restraining the defendants, their agents, servants and/or privies from acting in any way contrary to the rights of ownership of the plaintiffs in the said land without the previous consent or approval of the plaintiffs.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

At the subsequent trial, both parties testified on their own behalf and called witnesses.

The case for the plaintiffs, briefly, is that the land in dispute is owned and possessed by their family and, before them, their forebears from time immemorial. As owners thereof, they made maximum use of the same by planting and reaping economic trees and by cultivating and building houses thereon. They also put tenants including family members of the defendants on the land. They described the defendants as the descendants of a war captive, Nduka, who lived with Onewe and was protected by the said Onewe who was a member of the plaintiffs’ family. It was to Nduka that the plaintiffs’ ancestor, Onewe, granted the land verged yellow in Exhibit A. The plaintiffs further pleaded that following some acts of trespass, they were obliged to sue the defendants at the Achi Native Court in 1925 and obtained judgment. This is suit No. 611/25, Exhibit C. However, by the intervention of one Rev. S. Okolo, DW7, the plaintiffs allowed the defendants to continue with their occupation of the land granted to their ancestor by Onewe. The defendants, after the Nigerian civil war commenced various acts of trespass on the land in dispute and claimed ownership thereof hence this action. Essentially the plaintiffs relied on traditional evidence, the 1925 Achi Native Court judgment, Exhibit C, numerous acts of ownership and possession on the land and possession of adjacent or connected land in proof of their title to the land in dispute.

The defendants denied the plaintiffs’ claims and asserted their ownership and possession of the land in dispute, also, from time immemorial. They relied inter alia on traditional evidence, numerous and positive acts of possession and ownership in and over the land in dispute from time beyond human memory and the 1940 settlement between the parties in respect of their Nkpo Uno and Ugba Nduka pieces of land shown in their plan, Exhibit D.

At the conclusion of hearing, the learned trial Judge, Nwazota, J., as he then was, after a most meticulous and exhaustive review of all the evidence on the 21st day of July, 1986 dismissed the plaintiffs’ claims in their entirety. He concluded as follows:-

“In conclusion, may I observe that bearing the foregoing in mind, and noting, as I do, my preference of the material aspects of defence evidence to that of the plaintiffs and their witnesses, I am firm in my judgment that the plaintiffs have failed to adduce satisfactory and credible evidence as to the precise nature of title for which they seek a declaration, and have also failed to adduce satisfactory and credible evidence of a title of the nature claimed by them to justify my making the declaration they seek. I am equally satisfied that no satisfactory and credible evidence has been adduced by them to support and sustain their claim for damages in trespass. Besides, I am also unable to discern any basis for their claim for an order of injunction restraining the defendants, their agents, servants and/or privies from acting in any way contrary to their alleged rights of ownership in or over the parcels of land described as “MASA” and “ANI OBU” as shown on their Survey Plan No FCO/D25/76 filed along with their statement of claim. It is my judgment therefore that plaintiffs’ claims against the defendants are not proved and must be and are hereby dismissed.”

Dissatisfied with this decision of the trial court, the plaintiffs lodged an appeal against the same to the Court of Appeal, Enugu Division, which court in a unanimous decision on the 13th day of April, 1992 dismissed the appeal. It stated:-

“In this case the plaintiffs never succeeded in making a prima facie case to which the defendants could react to. This arose mainly from poor and insufficient pleading. In the final conclusion, it is my view that the plaintiffs’ case deserved to fail before the lower court as was the case. This appeal fails and is accordingly dismissed with N750.00 costs in favour of the defendants/ respondents”

Aggrieved by this decision of the Court of Appeal, the plaintiffs have further appealed to this court.