Chief Augustine Ndulue & Anor V. Igwe Michael O. Ojiakor & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

STANLEY SHENKO ALAGOA, J.S.C

This is an appeal against the judgment of the Court of Appeal Enugu Division in Appeal No. CA/E/97/99 delivered on the 7th May, 2001 upholding the judgment of the High Court Awka, Anambra State Suit No. AA/39 /90 delivered on the 6th October, 1997. In the said High Court, the present Respondents as Plaintiffs claimed against the Appellants as Defendants as per Paragraph 27 of their Amended Statement of Claim dated the 26th July, 1997 and filed on the 28th July, 1997 at page 90 of the Records, the following reliefs:

i. A declaration that the plaintiffs are entitled to the Statutory Right of Occupancy over all that piece and parcel of land known as Odongwo lying and situate at Adazi – Nnukwu more particularly shown and verged red in Survey Plan No. SC/AN/503/LD/90 prepared by Dr. C.O. Ezeanwusi, Licensed Surveyor with an annual rental value of N10.00.

ii. N50,000.00 (Fifty Thousand Naira) general damages for the acts of trespass committed by the defendants on the land in dispute.

iii. An order of perpetual injunction restraining the defendants, their heirs, agents and assigns from committing further acts of trespass on the land in dispute in this case.

The facts of this case as presented by the Respondents in their Amended statement of Claim are that they are natives of Adazi – Nnukwu town in Anaocha local Government Area of Anambra state and brought this action for themselves and on behalf of the people of Adazi – Nnukwu. The 1st Respondent (then 1st Plaintiff) is the traditional ruler of Adazi – Nnukwu. The Appellants (then Defendants are natives of Umuori community Neni in the same Anaocha Local Government Area of Anambra State and were defending the action on behalf of themselves and people of Umuori community Neni. The land in dispute according to the Respondents in their pleadings is known and called Odongwo and is situated at Adazi Nnukwu and is more particularly shown and verged red in the survey plan No. SC/AN/503 LD/90 prepared by Dr. C. O. Ezenwere, Licensed Survey which said Survey Plan is attached to the Amended Statement of Claim. The land in dispute is bounded as follows:-

a) On the North by the Idozu River

b) On the south by a portion of Ndiagu land otherwise know as Agu Umuori shown in 1938 to the people of Umuori, Neni (Defendants) by the Plaintiffs in lieu of damages awarded by the Court against Adazi – Nnukwu people in Suit No. 0/65/34 PETER O. EZEANI & 16 ORS V. NNOLI EZENE & 29 ORS.

c) On the West by the land of the people of Otta Village, Oraukwu and;

d) On the- East by Ndiagu Adazi – Nnukwu land on which lies the Girls secondary school, Adazi – Nnukwu).

The Respondents further averred that the land in dispute and the land lying south was formerly occupied by one Idozuka Appellants’ ancestor who occupied same by virtue of a grant made to him by the people of Adazi – Nnukwu. Idozuka himself was a farm worker from Nri.

The Respondents also averred that during the time of inter tribal wars, the people of Umuori joined a group of slave raiders from Arochukwu to raid a village in Adazi – Nnukwu called Amaida na Umudiana, sacking the village, dispersing the inhabitants and capturing many of them as slaves which angered the Adazi – Nnukwu people who in a reprisal action waged war against the Umuori people, driving them out of Umuori town and re-possessing the land which they now called Agu Umuori Adazi – Nnukwu. Title to the land is thus vested on the Respondents by right of conquest and as owners in possession of the land in dispute, the Respondents have been exercising diverse acts of possession thereon such as farming, fishing on the Idozu River and tapping the Rafia palms thereon. The Respondents also rent out portions of the land in dispute to tenants. The Respondents went on further to aver that in 1924 one Peter Ezeani from the Appellants’ community went to Adazi – Nnukwu and begged to be given a portion of Ndiagu land or Agu Umuori on the Agulu – Nnobi road to settle and carry on his business of palm oil trade.

The Respondents acceded to the request and granted the said Peter Ezeani a customary lease on payment of yearly tribute of eight hens, one fowl, (cock) and a pot of palm wine. A written memorandum of the transaction was later made between Chief Ojiakor the warrant Chief of Adazi – Nnukwu and peter Ezeani.

It was the averment of the Respondents also that in 1911 six people from the Appellants community entered Agu Umuori land and were warded off by the Respondents. In 1912 the Appellants again entered into Agu Umuori land and constructed huts therein which prompted the Respondents to institute suit No.81/1912 AFORCHETA v. OBUORA against the Appellants at the Native Council Court of Agulu claiming title to Agu Umuori land. The Respondents were awarded title to Agu Umuori Land by the then District officer S. W. Sporston and in the course of the hearing of the suit a prominent member of the Appellants’ community by name Ifeanwusi gave evidence for the Respondents, admitting that the land in dispute in that case originally belonged to them but was lost to the Adazi Nnukwu people through conquest. One Obiora also of the Appellants, community also made a similar admission. It was also further averred by the Respondents that in 1916 another group of people from Umuori again trespassed on the land in dispute and one Aforcheta from the respondents’ community again successfully maintained action against them. It was the further averment of the Respondents that the Appellants again tried unsuccessfully to repossess the land in dispute. One Enidom and Okafor for themselves and on behalf of Umuori people instituted an action (suit No.3 of 1931) against Ojiako and Nnoli on behalf of Adazi – Nnukwu people at the Provincial Court of Onitsha Province Holden at Awka for declaration of title to all that piece and parcel of land situate at Awka known as Umuori lands etc. The claim of the Appellants was dismissed by the Provincial Court. An appeal by the Umuori people was dismissed by the then Supreme Court on the 2nd September, 1932. During the hearing of the said suit No.31 of 1931, one Enidom Okafor who was a star witness of the Appellants admitted that there had been a previous litigation at the Agulu Native Court, the verdict of which was unsatisfactory to the Umuori people. Inspite of subsisting judgment against the Appellants, they entered Agu Umuori again and began to erect buildings thereon which led to the arrest and prosecution of twenty persons who were convicted and sentenced in Charge No. 102/32 REX V. P. O. EZEANI & 19 ORS.