Chief Igboama Ezekwesili & Ors. V. Chief Beniah Agbapuonwu & Ors (2003)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

This is an appeal against the judgment of the Court of Appeal Enugu, delivered on the 20/1/1998 dismissing the appellants’ appeal against the judgment of High Court of Anambra State presided over by Amaizu J, (as he then was) on the 27/10/1994. Before the High Court, the respondents herein as the plaintiffs in representative capacity claimed against the defendants, the appellants herein also in representative capacity, the following reliefs:

“(a) Declaration of title to, and possession of the land known and called “OKPONO AZU” being and situate at Ogbunike town in Anambra Division and shown on Survey Plan No. MEC/66/73 filed by the plaintiffs and thereon verged pink.

(b) N600.00 (Six Hundred Naira) or 300 Pounds (Three Hundred Pounds) damages for trespass committed by the defendants on the plaintiffs said Okpuno Azu land.

(c) Perpetual injunction restraining the defendants, their servants, agents, successors and assigns from continuing in possession or further trespassing on the said Okpuno Azu land.

Pleadings were filed, exchanged and amended and the case went to trial and after its conclusion and in his judgment the trial Judge, gave judgment in favour of the plaintiffs and granted all the reliefs sought. The defendants felt dissatisfied with the judgment of the trial court and unsuccessfully appealed to the Court of Appeal, Enugu Division. With the leave of this court granted on the 26/3/2002, the defendants have further appealed to this court upon five grounds of appeal as contained in the amended notice of appeal filed with the aforesaid leave on 19/12/2002.

Before discussing the issues for the determination of the appeal, it is convenient at this stage to state the facts relied on as pleaded by the parties. In order to fully appreciate the case of the parties, the relevant portions of their pleadings would be set down. By the plaintiffs’ further amended statement of claim they averred inter alia in paragraphs 3, 11, 12, 15 and 19 as follows:

“3. The plaintiffs family are, and have been themselves and through their ancestors from time out of mind, owners in possession of a piece of land known as and called “OKPUNO AZU” being and situate at Ogbunike in Anambra Division of the Anambra State. The said “OKPUNO AZU” land is shown verged green on survey plan No. MEC/66/73 filed with this statement of claim.”

“11. The plaintiffs’ ancestors and after them the plaintiffs family have been in uninterrupted ownership and possession of OKPUNO AZU LAND from time out of mind to the knowledge of the defendants and their ancestors of Aboh Amawa without let or hindrance from them or anyone whatsoever such acts include inter alia reaping economic fruits and cutting timber. Cultivating annual crops, granting portions in customary tenure for building and dwelling purposes to Ukalo people and to Amawa people (defendants) and their ancestors, and to Abatete tenants for farming and taping palm wine, making leases to C.M.S. School Authority and also to Ogbunike Community for siting a Post Office. The relics of ancestral juju shrines vacated by the plaintiffs for post office was registered as an instrument as No. 85 at page 85 in Volume 456 of the Lands Registry in the office at Enugu. Plaintiffs will rely on survey plan No. J01/29 tendered in those proceedings.

12. The plaintiffs’ OKPUNO AZU LAND has been the subject of considerable litigation between the plaintiffs family and adjoining neighbours including the defendants

(i) In the Ogidi Native Court Suit No. 384 of 1927 one Arinze of Azu Ogunike (plaintiffs’ family) sited one Okeke and others of Ogidi for trespass on OKPUNO LAND. Judgment was for plaintiffs’ family. The defendants and their ancestors knew about this case yet they did nothing. One Igboechieze, one Azodo and one Ikedinma (defendants people of Amawa) gave evidence for the plaintiffs. The plaintiffs will found on this suit.

(ii) In the Supreme Court Suits Nos. 1 of 1930 and 2 of 1930 consolidated, which were later by order of the full court retried as Suit No.1 of 1930, one David Okoyo for Ogidi people sued one Timothy Ejiofo of Azu Ogbunike for “declaration that the boundary between Nkwelle-Ogidi land and the Ogbunike land is the old Awka-Onitsha Road”.

Judgment was for the plaintiffs in that case. On appeal to the West African Court of Appeal, the judgment of the Supreme Court was upheld. The boundary thus made between Nkwelle-Ogidi and the plaintiffs’ family forms the Southern limit of the plaintiffs’ OKPUNO AZU LAND. While this case was going on the defendants and their ancestors stood by and in fact gave evidence for the plaintiffs’ people. The plaintiffs will found on this suit and its appeal judgment and will plead that the defendants are estopped by it from relitigating the extent of plaintiffs OKPUNO AZU LAND. Plaintiffs will rely on survey plan No. J01/29 tendered in those proceedings.

(iii) In Umuigwedo Native Court Suit No. 126 of 1949 one Nwankwo Otogbolu & Anor. sued one Igbonasi Obike over a portion of OKPUNO AZU LAND claiming ejectment. Both sides to the dispute were Uruekwulum Amawa customary tenants of the plaintiffs family who lived on OKPUNO AZU LAND. Judgment was given for the plaintiffs in that case. On appeal to Umuigwedo Appeal Court one Agbakoba Okwudi, Timothy Ejiofo and three others of the plaintiffs’ family gave evidence claiming the portion of land then in dispute as OKPUNO AZU LAND. The appeal was allowed plaintiffs case was dismissed and plaintiffs in that case and Azu people (present plaintiffs) were advised by the court to take out a writ to determine the ownership of the land then in dispute. The judgment of the appeal court was upheld by the A.I. Osakwe Esq. A.D.O. on review of the appeal judgment. On a further appeal to S.P.L. Beaumont, Acting President for Onitsha province the decision of the A.D.O. was upheld.

(iv) Consequently after the decision of S.P.L. Beaumont, one Onyejekwe Epundu and Another (for Azu Ogbunike) sued Nwankwo Otogbolu and 3 others of Amawa (defendants) in Umuigwedo Native Suit No. 76/55 claiming declaration of title to Okpuno Azu land. damages for trespass, and injunction. Judgment was for the plaintiffs in that case.