Christopher C. Obiaso & Ors V. Isaac C. O. Okoye & Anor (1989)

LawGlobal-Hub-Hub Lead Judgment Report

UWAIFO, J .C.A.

This action was filed at the Onitsha High Court on 19th march, 1976. The statement of claim was filed on 19th July, 1976 and the statement of defence on 29th November, 1976. On 25th January,1977, the statement of claim was amended and consequently the statement of defence was amended on 14th March, 1977. Five reliefs were sought altogether as follows:

“(i) Declaration of title to all that piece or parcel of land known as and called ‘ANA ABOGWUGWU’ situate at Okpuno Aboji Village, Oba within jurisdiction and the annual value of which is about N40.00.

(ii) An order of Court for the 1st and 2nd defendants to accept the redemption fee paid by them to the plaintiffs’ family in 1968 in respect of the portions of the said land more particularly and accurately delineated on the plaintiffs’ survey plan to be filed to Court.

(iii) Possession of the said portions of land pledged as aforesaid.

(iv) 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.

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

It is perhaps a useful guide to note from the outset that: (a) from reliefs (ii) and (iii) above, the land(s) pledged is or are inferred to be for the plaintiffs’ family; (b) there is an inference by the plaintiffs that the contracts of pledge were between the plaintiffs’ family and the 1st and 2nd defendants. I have pointed these matters out in view of the pleadings and evidence on the said pledges, and the importance the trial Judge attached to them in deciding this case. In truth those inferences would be wrong, misleading and unjustified. At this stage it is pertinent also to mention that the plaintiffs sued in a representative capacity on behalf of their family and that the defendants were sued in their personal capacities.

The plaintiffs in their pleading aver that the land in dispute is part of a parcel of land which they call Ana Abogwugwu and which they say is situate within Aboji Village: see paragraphs 3 and 4. They also aver that Ana Abogwugwu is part of Abogwugwu land: see paragraphs 8 and 9. The defendants on the other hand say as well that the land in dispute forms part of a larger parcel of land known as Abogwugwu although the piece of land itself in dispute is called Ani Umuokpagwu. But they say that Ani Umuokpagu is situate within their own village, Umuogali: see paragraphs 3, 4 and 9.

Next is that the plaintiffs’ claim that their family have been owners of Ana Abogwugwu from time immemorial and have exercised exclusive acts of ownership and possession, the people of Aboji having been the first to clear and take possession of the land which was then virgin piece of land. It was in that process the plaintiffs’ family acquired the land in dispute: see paragraphs 6, 7, 8, 9 and 10. The aspect of these averments as to how the plaintiffs’ family became the owners of the land in dispute is not clear.

The plaintiffs then went on to name some of their ancestors within living memory who have enjoyed the land, including one Oliobi and one Agusiokwu. The descendant of Oliobi is the 1st plaintiff, while the 2nd plaintiff is that of Agusiokwu: see paragraphs 11 and 12. The land in dispute was shared among the sons of Oliobi who was the grandfather of the 1st and 2nd plaintiffs. Although, as pleaded, this was for farming purposes only, each sub-family lets out portions of its area of land to tenants. That was how some portions were let out to the 2nd, 3rd and 4th defendants: see paragraphs 13, 14 and 15.

The defendants deny the plaintiffs’ claim to ownership, possession and letting out as above-stated. Rather they say that their ancestors acquired the land from time immemorial by being the first to clear it when it was virgin land. The land so acquired is known as Ani Umuokpagu but different families of Umuogali village together own Abogwugwu land in Umuogali village. It will be noted that while both parties plead identical origin of ownership, both claim also that the land in dispute is within their own respective villages.

The specific act of ownership pleaded by the plaintiffs is that the 1st and 2nd defendants obtained in 1968 two separate pledges from one late Onyeuke Agusiokwu, the elder brother of the 2nd plaintiff. The first made to the 1st defendant was for an amount of ?4.00 and the second made to the 2nd defendant was for ?11.00. The plaintiffs aver that these parcels of land are within the land in dispute. While the defendants admit such transactions, they say that the parcels of land are (a) not within the land in dispute. (b) the personal lands of the said Agusiokwu and (c) not what the plaintiffs can rely on to sue in a representative action.

It seems that the issues joined on the pleadings are boldly: (1) The village in which the land in dispute is situated. (2) Traditional history of ownership. (3) The location and ownership of the parcels of land pledged to support claim to title in respect of the land in dispute. Both parties also allege acts of possession. But in addition, the defendants specifically aver in paragraph 7(a) of the amended statement of defence what might be considered acts of old habitation as follows: