Dr. David Chukwuemeka Obiefuna Okoye V Christopher N. Obiaso (2010)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C.

The appellants were plaintiffs at the High Court of Anambra State,holden at Onitsha in Suit No. 0/40/76 in which they claimed the following reliefs against the respondents who were then the defendants:

“(a) A declaration that the plaintiffs are entitled to customary right of occupancy of the land hereinbefore described as the land in dispute, the annual valued of which is N40.00

(b) An order of court for the 1st and 2nd defendants to accept the redemption fee paid by them to the said pledged land delineated on the plaintiffs. Plan No. NG/AN 180/99 and therein hatched blue.

(c) An order of court for forfeiture against the 2nd, 3rd and 4th defendants in respect of the areas on customary tribute hatched red on the plaintiffs’ plan.

(d) N400.00 General Damages for trespass and wanton destruction of the plaintiffs’ economic crops on the land in dispute outside the area pledged to the 1st and 2nd defendants as aforesaid.

(e) Perpetual injunction to restrain the defendants, their servants, agents, representatives and each and everyone of them from any further acts of trespass upon the said land or from interfering in any way whatsoever with the plaintiffs’ enjoyment of the said land.”

Parties to the action field and exchanged their pleadings. The action was instituted and prosecuted in a representative capacity. The land in dispute is called “Ana Abogwugwu” by the appellants and is said to situate at Okpuno Aborji village in Oba which the appellants’ claim was pledged in 1968 to 1st and 2nd defendants which the family sought to redeem.

At the conclusion of trial, the learned trial judge dismissed the case of the plaintiffs/appellants who consequently appealed to the Court of Appeal, which found no merit in the appeal and dismissed same. The present appeal is a further appeal by the appellants against the judgment.

Both parties are natives of Oba town, in Anambra State, which town was founded by their common ancestor, OBA. It is agreed by the parties that the said OBA had nine (9) sons. Apart from the above two basic facts, the traditional history/evidence as to who came to own the land in dispute conflicts with each party pleading its own version. However, both parties rely on acts of recent possession over the land in dispute in addition to their version of traditional history as to how they came to own the land in question. Both parties also pleaded a customary arbitration, which took place between the parties in 1975 and conducted by the elders of Oba town/community who rendered a decision thereon, though the verdict varied between the parties.

It is not disputed that sometimes in 1968, two pieces of land were pledged by one ONYEUKE

AGUSIOKWU to the 1st and 2nd defendants/respondents respectively, which transaction was evidenced exhibits B and B1, tendered by the plaintiffs/appellants. It is the contention of the appellants that the said pieces of land situate, and/or are contained within the land in dispute, which extent is delineated in exhibit A – a survey plan also tendered by the appellants. On the other hand, the defendants/appellants concede the pledge of the two pieces of land in dispute but contend that they do not only fall outside the disputed land but were the personal property of the pledgor as against the claim of family ownership put forward by the plaintiffs/appellants. To prove that the two pieces of pledged land fall within exhibit A, the appellants tendered exhibit A1, which is a composite plan or a superimposed plan resulting from the superimposition of appellant’s plan, exhibit A, on the defendants/respondents’ plan, exhibit G.

However, the learned trial judge, after reviewing the evidence before the court held that the traditional history of the parties were in conflict thereby necessitating his application of the principles in Kojo vs. Bonsie by having recourse to acts of ownership and possession by the parties on the land in dispute extending over a period of time in resolving the issue of the ownership of the said land and come to the conclusion that the evidence of the defendants/appellants; that the pieces of land in dispute do not belong to the family of the plaintiffs/appellants but was the personal property of the pledgor and that they fall outside the land claimed by the plaintiffs/appellants in exhibit A.

On the question of customary arbitration pledged by both parties, the court found that the plaintiffs/appellants abandoned their pleadings in that respect as they adduced no evidence to establish their version of the outcome or decision of the arbitration which they had pleaded was for the defendants to swear to a juju oath but which the defendants failed/or neglected to do; that the defendants/respondents, on the other party testified and established the fact of the customary arbitration and the decision of the arbitrators as evidenced in exhibit J, to be in their favour. The trial court therefore held that exhibit J is binding on the parties as the same satisfied all requirements of traditional/customary arbitration and that the plaintiffs/appellants are consequently estopped from relitigating the issue of ownership of the disputed land.