Edeani Nwavu & Ors. V. Chief Patrick Okoye & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C

This is an appeal against the decision of the Court of Appeal, holden at Enugu in Appeal No,CA/E/190/1997 delivered on the 14th day of April, 2003 in which the court allowed the appeal of the present respondents and set aside the judgment of the High Court of Enugu State holden at Enugu in Suit No, E/21/88 delivered on the 21st day of June, 1996 granting the reliefs of the appellants, then plaintiffs before that court.

“The claim of the plaintiffs, as stated in the Amended Statement of Claim, paragraph 32, is as follows:-

“32. WHEREFORE the plaintiffs claim against the defendants jointly and severally as follows:-

(i) A declaration that the plaintiffs and the defendants are jointly and communally entitled to the customary Right of Occupancy of the following pieces of land namely – Ukor, Ukpolikpo, Uzam Ani, Be Antunsi Awururu, Ubia and Agba :Ekpe lands situated in Akpawfu Nkanu Local Government, Area within jurisdiction

(ii) Perpetual injunction restraining the defendants, their heirs, ‘agents, servants, privies and all those claiming through them ,from further interference with the plaintiffs’ right of ‘enjoyment as joint and communal users of the land aforesaid”.

The case of the plaintiffs/appellants is simply that they represent the people of Akpawfu Community, in Nkanu Local Government Area, excluding the defendants/respondents in the action; that both parties to the action; descend from a common progenitor named Oyiwode who originally acquired the pieces of land now in dispute when they were virgin, which lands, after his demise have been owned and enjoyed in common with the defendants; that the parties jointly built and own a Maternity home, Elementary school and a Cassava farm on the lands in dispute. It is also the case of the appellants that the parties also defended, an inter tribal boundary dispute jointly against a neigbouring town of Obunaw Akpugo when the latter sued Akpawfu for the determination of their common boundary i.e between Obunaw Akpugo and Akpawfu communities which dispute was resolved by Mr. Hill, the then Assistant District Officer in favour of the Akpawfu community, which decision was confirmed by the Chief Commissioner, Eastern Provinces; that the demarcation of the boundary subsequently resulted in a suit by the said Obunaw Akpugo community against Ivurube Nwa Nnamni and 53 others in their personal capacities for allegedly straying across the said boundary in the Native Court Suit No. 11/52, which case was lost by the people of Obunaw Akpugo. The appellants also stated that both parties enjoyed the pieces of land in common until 1987 when the respondents destroyed (heir farms therein.

On the other hand, it is the case of the defendants/respondents that they do pot share a common ancestor with the appellants and they denied being sued jointly with the appellants in Suit No. 11/52, in a representative capacity. The respondents maintained that the appellants were immigrants from diverse places who were described as “Awbias” in local dialect and who constituted themselves into a community called “Umuodenigbo” and paid rents to the respondents for living and farming on the parcels of land now in dispute until 1987 when they refused to do so. The respondents did not counter-claim against the appellants.

As stated earlier in this judgment, at the conclusion of the trial, the learned trial judge found in favour of the plaintiffs/appellants and granted the reliefs, earlier reproduced.

The respondents were dissatisfied with the decision and consequently appealed to the Court of Appeal holden at Enugu in Appeal No. CA/E/19/1997 which court reversed the decision of the trial court resulting in the instant appeal to this court.

In the amended appellants’ brief filed on the 9th day of November, 2004 and, adopted and relied upon in argument by Learned Senior Counsel for the appellants Chief Chike Ofodile, SAN on the 20th day of October, 2008, the following issues have been identified for the determination of the appeal:-

“3.01 Whether the Court of Appeal was right in setting aside the judgment of the trial court and dismissing the plaintiffs /appellant’s case.

3.02 Whether on the proper application of the reasoning/ principle arising from the decision of the Supreme Court in Jonah Agbo & Ors vs George Ugwu & Anor (1977) 10 S.C page 77 or (1977) ANLR page 287 (facts of which are most identical to the instant case) the court below was right to have dismissed the plaintiffs/appellants case.

3.04” Whether the Court of Appeal was right in holding that estoppel does not apply in favour of the plaintiffs/appellants in this case.