Godwin C. Onovo & Ors V. Ferdinand Mba & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

The appeal by the plaintiffs/appellants is against the judgment of the Court of Appeal delivered on 13th June, 1989. The appellants were the plaintiffs before the Enugu High Court and on their statement of claim at paragraph 23 claimed against the defendants as follows:-

“(a) A declaration of title to a customary right of occupancy of the said piece or parcel of land situate at Obeagu Ugbawka and called ‘Akpa land’ which land is more particularly delineated in the plan attached thereto.

(b) N500 General Damages for Trespass.

(c) A perpetual injunction restraining the defendants their servants or their agents from entering the land in dispute and in any manner whatsoever interfering with the said land without the prior consent of the plaintiffs.”

The case of the plaintiff who sued for themselves and on behalf of Umuenwezette Quarter of Obeagu, Ugbawka, was that the land in dispute had belonged to them from time immemorial; that they had also exercised acts of ownership over the said land all this time. While eight witnesses testified on behalf of the plaintiffs/appellants, seven witnesses also gave evidence for the defendants/respondents whose case briefly put was that, the Akpa land is a area of land and each family or quarter in Ugbawka has its portion including the plaintiffs and the defendants.

Both parties agree as a common factor between them that they share a common ancestor – Ogbu Nwazeogu, who had two sons namely Anyi Ogbu and Nevo Ogbu. While the plaintiffs/appellants are the descended of Anyi of Anyi Ogbu, the defendants/respondents are that of Nevo Ogbu; both parties however disagree as to was the elder of the two sons if Ogbu Nwezeogo. It is also agreed by both parties that their common ancestor shared his land between his two sons.

From the pleadings and the evidence led on the record, both parties relied on traditional history and acts of ownership and possession. The plaintiffs, in addition further relied on a 1957 suit No. E/10/57 in proof of their ownership to the land in dispute.

The crux of the matter before the trial court was, while the plaintiffs/appellants on the one hand, claimed that their ancestor was given Akpa land of which the land in dispute forms a part, the defendants’ ancestor was not given any portion of the Akpa land but was only given the apiti land. The defendants on the other hand had contended that their common ancestor Ogbu Nwezeogo gave each of his two sons a portion of Akpa land and also a portion of apiti land.

In other words, the defendants/respondents, contrary to the contention by the plaintiffs/appellants are of the view that the parties each has a portion of share in both Akpa and apiti lands.

On the 9th June 1983, the trial court Judge, Ubaezonu J, (as he then was) in a considered judgment dismissed the plaintiffs, in its entirety.

The plaintiffs as appellants were dissatisfied with the said judgment and lodged an appeal at the lower court (Court of Appeal Enugu). The lower court in its considered decision also entered judgment in favour of the respondents against the appellants whose appeal to that court was dismissed.

The appellants were again dissatisfied with the said judgment of the lower court and have further appealed to this court by filing five grounds of appeal.

It is instructive to state that the appeal which was initially dismissed for want of diligent prosecution by this court on April 4, 1996 was however relisted on December 16, 2017, by the grant of the appellants, application thereto dated March 3, 2010. Also, subsequent to the relisting, and pursuant to a motion dated December 18, 2012 an order was made substituting the names of the original parties which were changed accordingly.