Ugorji Obi V. Daniel Mbionwu (2002)

LAWGLOBAL HUB Lead Judgment Report

A. I. IGUH, J.S.C. 

Both parties are two neighbouring communities sharing common boundary in the Ideato Local Government Area of Imo State.

By a Writ of Summons issued on the 24th day of December, 1975, the plaintiffs, for themselves and on behalf of the people of Osina Community in Imo State, instituted an action against the defendants jointly and severally as representing their Akokwa Community at the Orlu Judicial Division of the High Court of Justice Imo State claiming as follows:-

1. A declaration that the Ekpe – an ancient trench is the boundary between Osina and Akokwa.
2. An injunction to restrain the defendants and the people of Akokwa from crossing the said ancient boundary and laying claim to land on the Osina side of the Ekpe ditch.

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 from time beyond human memory, there has been an ancient Ekpe trench that lies between the plaintiffs’ town of Osina and the defendants of Akokwa town. This trench was constructed by the joint effort of the ancestors of both communities and demarcated the land boundary between the two towns. the Ekpe trench is more particularly shown on the plaintiffs’ survey plan No. MG. 326/76 which was tendered in evidence at the trial and marked Exhibit A. The plaintiffs and defendants from time immemorial had accepted and respected the said Ekpe trench as the boundary between their two towns.

The plaintiffs’ claimed that in 1974, the defendants’ people of Akokwa in disregard of the ancient Ekpe boundary crossed the trench into the territory of the plaintiffs people and forcibly laid claim to land on the plaintiffs’ side of the boundary by farming and building houses thereon. The plaintiffs claimed that unless restrained by an order of court, the defendants’ people would continue to cross the said ancient Ekpe trench at other points into the plaintiffs’ territory thus involving the plaintiffs in long drawn – out and expensive litigation.

The defendants denied the plaintiffs claims and asserted that the Ekpe trench shown on the plaintiff’s survey plan which is the only Ekpe trench on what the defendants called the land in dispute did not constitute the boundary between Osina and Akokwa towns. They stated that the said Ekpe trench lied well within the defendants Uhu Ehihi Oke land which they claimed was in dispute and that it was built by the defendants’ ancestors from time immemorial as their last line of defence. They claimed that the boundary between the plaintiffs Osina town and the defendants’ Akokwa Ikpa land was and had always been as shown verged brown in the defendants’ plan No. IM/GA.5349/77. They stated that at no time did they or their ancestors accept the Ekpe trench as the boundary between Osina and Akokwa towns.

The defendants referred repeadedly to what they called the landin dispute and stated that it is a portion of their land known as Uhu Ehihi Oke. They claimed that the said Uhu Ehihi Oke land in dispute had from time immemorial been in their exclusive and undisturbed ownership and possession. They stated that the said boundry verged brown was from time immemorial demarcated by the defendants with life trees and that both towns had always accepted the said trees as their correct boundary marks. The defendants pleaded a number of court cases which they claimed related to what they described as the land in dispute and relied on res judicata, numerous acts followership and possession of the land in dispute and estoppel by record.

At the conclusion of hearing, the learned trial Judge, John, J., after what looked like a full scale declaration of title to land claim by the plaintiffs dismissed the suit.

Dissatisfied with this decision of the trial court, the plaintiffs lodged an appeal against the same to the Court of Appeal, Port Harcourt Division which court in a unanimous decision on the 5th day of November, 1996 allowed the appeal and set aside the judgment and orders of the trial court delivered on the 16th January, 1985. The Court of Appeal further directed that in order to do substantial justice to both parties in the suit, it was desirable that the suit be tried de novo before another Judge of the Imo state High Court of Justice, Orlu Judicial Division other than Johnson, J. The Court of Appeal further ordered that the new trial Judge must, and should visit the locus in quo in order to have a thorough appraisal of what is actually in dispute between the parties once and for all.

Aggrieved by this decision of the Court of Appeal, both parties have now appealed to this court.

Pursuant to the rules of this court, the parties filed and exchanged their written briefs of argument. In the defendants/appellants’ brief of argument, the following four issues are set out as arising for determination in the main appeal, that is to say:-

(a) Whether having regard to the pleadings of the parties, issue was joined in respect of any piece of land: Ground One.