Ekwenugo Okugo & Ors. V. Nweke Nwokedi & Ors. (1997)

LawGlobal-Hub Lead Judgment Report

EJIWUNMI, J.C.A. 

This appeal is against the ruling of Amaizu J in suit No. OT/25/89 wherein the plaintiffs commenced this proceedings against the defendants jointly and severally for the sum of N20,000.00 as general damages for the defendants’ trespass to the plaintiffs’ land known and called Achutu in the possession of the plaintiffs and for an injunction restraining the defendants, their servants or agents from further trespass to the said land. Pleadings were subsequently ordered and exchanged.

By the pleadings so filed the plaintiffs and the defendants joined issue on several paragraphs of their respective pleadings on the traditional evidence of ownership and possession of the disputed land. In order to identify how they joined issues in that regard, the relevant paragraphs of their pleadings would be reproduced. But before then it is clear from the pleadings that though the defendants have denied in paragraph 3 of their statement of defence that the land in dispute is called Achutu as pleaded by the plaintiffs, but they have admitted in paragraph 4 of their statement of defence that “The land claimed by the plaintiffs in dispute is shown verged pink on Plan NLS/N290/89 filed with the statement of claim but deny the boundaries, features and names indicated therein. The defendants assert that the correct features, names and boundaries are as indicated in the defendants’ plan No. NG/AN543/84 filed with this statement of defence.”

Beyond that admission of the disputed land and the consequential denial of the features of the land pleaded by the plaintiffs, the defendants denied paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34 of the statement of claim. In view of that position of the defendants, the pleadings of the plaintiffs in those paragraphs are hereby reproduced. They read:

6. The land in dispute originally belonged to the plaintiffs’ ancestor called Nsugbe, together with other pieces of land that went to make up what is now known as Nsugbe Town. He was the first man to live there.
7. The land in dispute descended by way of inheritance from Nsugbe to the plaintiffs, through generations of the plaintiffs’ ancestors, who were the descendants of the said Nsugbe.
8. Nsugbe was a son of Eri.
9. Eri was an Igala man who was a hunter and a native doctor and he hunted along the Anambra River and settled at a place called Aguleri Igbo. There he begat five sons whose names were Aguleri, Nsugbe, Igbariam, Nteje and Amanuke. He also begat one daughter whose name was Igwedo.
10. Igwedo for her part married a succession of men for whom she begat issues, and her offspring form the communities known today as Umuleri, Awkuzu and Nando.
11. The five sons of Eri grew up and were settled on the lands which today bear their respective names by their father Eri, before he left the Anambra River area and went to settle further inland at a place now called Nri town.
12. The place where he settled Nsugbe is the place now called Nsugbe town. It was virgin land, and Nsugbe was the first man to live there.
13. Nsugbe had nine sons, namely, (1) Enugu, (2) Ofianta, (3) Abba, (4) Amumu (5) Amagu, (6) Agbalagbo (7) Akpalagu, (8) Ogwari, and (9) Amaofu.
14. On the death of Nsugbe these nine sons divided their father’s lands and Ofianta took a share which included the land now in dispute.
15. Offianta, in turn, begat four sons, namely, Ikokpa, Ara, Irudigwe, and Agbudu.
16. On the death of Ofianta these four sons of his did not share his lands but enjoyed them in common.
17. The lands left by Ofianta for his sons were Atusa, Ojibilu, Owelle and Achutu.
18. It was on Achutu that Ofianta made his home, and it was there that he lived and died.
19. On his death, his sons and their descendants continued to live on Achutu and to farm it and the other lands Atusa, Ojilibu, and Owelle, in common.
20. Within Achutu was a market-place called Otu, because it was at the waterside. This market was a popular market while the Ofianta people lived on Achutu, and people came there to buy and sell from distant places.
21. Through the cover of the diversity of peoples who came to the Otu market, kidnappers also appeared, and several children of the Ofianta people got missing. For this reason the marker was nicknamed “Otu-Onya”, meaning “Trap-market” that is to say, a market was like a trap for Ofianta’s children.
22. When the kidnappers were not content to steal individual children but resorted to raiding the homes of Ofianta villagers near the waterside, the Ofianta people decided to leave Achutu entirely, and to move further inland. They accordingly abandoned Achutu (including the famous “Otu-Onya” market) as a place of habitation, and went to settle at their Owelle land – where they have lived up till today.
23. “Otu-Onya” market is shown with a YELLOW verge on the plaintiffs’ said plan No. NLS/AN 290/84, and the ruins of the habitation of the Ofianta people near Otu-Onya are also shown on that plan.
24. When the Ofianta people (the plaintiffs) were living on Achutu land they had their home around Otu-Onya market, where they formed a village. The ruins of their houses are shown on the plaintiffs’ plan.
25. The Offianta people also had juju shrines on the land in dispute which they worshipped. The most important juju was Achutu itself, whose shrine was a grove of akpu, ebenebe and other trees. They still “worship this juju, and its priest is Onuorah Mgbataogu, one of their people. The Achutu shrine is shown on the plaintiffs’ plan.
26. The second most important idol is juju which the Ofianta people worshipped on the land in dispute, and still worship up till today, is Ada Achutu. Its shrine is an ancient heap of stones which is within a very thick juju bush right in the middle of Achutu. Its priest is Onuorah Mgbataogu.
27. There are other idols whose shrines are as shown on the plaintiffs’ plan and whose chief priest is the same Onuora Mgbataogu of the plaintiff’s people.
28. When the Ofianta people moved their village from Achutu and went to live in their Owelle land, they still came to make sacrifices to their jujus on the land in dispute and to worship them, and to use the land as owners.
29. The plaintiffs also continued, up till today, to farm the whole land of Achutu.
30. When the Ofianta people, the plaintiffs, were living on Achutu, they frequently gave portions of land to other people to farm as customary tenants on yearly basis and on payment of the customary tribute. They even permitted some of their tenants to build houses on Achutu where they stayed when they came to farm on the land. But these tenants’ houses have now fallen into ruins: the ruins are shown on plaintiffs’ plan.
31. Even though they left Achutu as a place of residence, the plaintiffs have continued to exercise, up till today, maximum acts of ownership over the land, by farming the land, worshipping their idols on the land, giving portions of the land to customary tenants to farm on payment of tribute, reaping the fruits of the economic trees on the land-such as palm trees, mango trees and udala trees, and cutting the timber of other trees such as ebenebe, akpu and so on, all such trees as are shown on the plaintiffs’ plan. They also plant new ones.
32. The plaintiffs also built farm huts on the land in dispute which they use when they come to work in the farms, and they built yam barns for storing their crops. They also fished without interference in all the ponds within the land.
33. Many years ago there was a man of Nneyi village of Umuleri called Irunze. He married a daughter of Iloonyeokpa, first son of Ofianta, called Nwakume. This Irunze wanted a place to farm and was shown a portion of Achutu and he farmed it on payment of a tribute of a cock and forty seed yams, paid at harvest time. For some years he was shown different places to farm on Achutu land on payment of same tribute.
34. On lrunze’s death, his sons followed his footsteps, and each time they were shown portions of Achutu to farm on payment of the customary tribute. Lateran, other Umuleri people from Nneyi who ….. of land at Achutu.

And as the defendants also contend with the plaintiffs in respect of paragraphs 36, 37, 38, 39 & 40 of the statement of claim, those paragraphs are also reproduced hereunder beginning with paragraph 35.-

35. It was when these new people began to refuse to pay customary tribute of one person a cock and forty seed yams that the plaintiffs’ people began to refuse to show them land. Then they went to farm by force.
36. Because of this, the plaintiffs’ people sued those who thus trespassed into their land by force to the courts.
37. The first case was in 1907. Obi Chukwura, representing the plaintiffs’ family, sued Itugha of Umuleri, representing the defendants’ people, in respect of Achutu land and Otuonya – the former waterside market. Judgment was given in favour of the plaintiffs’ people as being owners of Achutu, including Otuonya. This case, No. 66 of 1907, of the Native Council Court of Onitsha will be relied upon as res judicata.
38. Again in case No. 890 in the same Native Council Court of Onitsha, a member of the defendant’91s family was charged with criminal trespass to the said Achutu land and Otuonya already awarded to the plaintiffs’91 people and was fined ?2. This was on 28/11/07, and this case will also be relied upon as res judicata.
39. After these cases the defendants’ people ceased trespassing into Achutu land (or into its Otuonya area) until 1947 when they made new incursions into the land and the plaintiffs stoutly resisted them and they left.
40. At all material times the plaintiffs were in possession of the land in dispute.
41. Then in the months of April, 1983, the defendants again came into the land in dispute without the permission or consent of the plaintiffs, farmed a small portions of it, and to reinforce themselves, brought in Abba people whom they showed areas to farm: they also secretly quarried stones from the land in dispute and carried same away. But the plaintiffs did not allow them, or their allies to stay long on the land but drove them out therefrom, and then took the instant action.

As I have already observed the defendants by their statement of defence, gave a qualified admission to the averment of the plaintiffs with regard to the location and description of the disputed land. But they pleaded further in the following paragraphs of the statement of defence as follows:-

5. The defendants deny paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, of the statement of claim.
6. The answer to paragraphs 36, 37, 38, 39, and 40 of the statement of claim the defendants assert as follows:-

(i) The cases therein referred to were all reviewed among other cases in the High Court case 0/73/57 between the same parties, to wit, Osili Nnacho & Others for Offianta Nsugbe v. Onuora Mechie for Akwuete Nneyi’97Umuleri in respect of the same portion of land as in this case and judgment was entered for the present defendants in that case dismissing the present plaintiffs’91 claims for a declaration of title to the land in dispute, ?40.00 damages for trespass ?300; ’97 for mesne profits, recovery of possession and injunction. This judgment which is hereby pleaded will be founded upon.

(ii) Defendants assert that they have from time immemorial been owners in possession of a vast area of land including the land in dispute and verged blue on their said plan No. MC/AN.543/84. They have their homesteads (original villages) therein.

(iii) As owners in possession the defendants had exercised maximum acts of ownership and possession not only in respect of land in dispute verged pink on their said plan and verged pink on the plaintiffs’ plan but also in respect of surrounding lands within the area verged blue on the said defendants’ plan acts of ownership and possession including having their homestead thereon, farming thereon, letting out portions to tenants and utilizing economic trees thereon. Within the area verged pink on both plans the defendants in 1898 granted the portion of the land in dispute verged brown to the Royal Niger Company by agreement dated 25th June, 1898 and registered as No. 109 in Volume 2 of the Niger Lands Agreement lodged in the Lands Registry, Lagos, This grant will be founded upon. The defendants also made a grant of the portion of land verged green on their said plan No. MC/AN.543/84 to Anambra State Government for Federal Aluminium Smelter Project (Reference Public Notice 51 of 17th March, 1983 and acquisition is to be paid to the defendants.

7. The defendants have always protected their title to and interest in the land in dispute and have defended and successfully resisted all plaintiffs’ claims to the land in dispute especially in Suits 0/32/1947 and appeals thereon and 0/75/57 which are hereby pleaded.
8. In consequence of the facts pleaded in paragraphs (6) and (7) of the statement of defence the plaintiffs are estopped from asserting ownership and possession of the land in dispute and/or from pursuing their present claims and will rely on the law of estoppel by res judicata.
9. The defendants deny that the plaintiffs are entitled as claimed or at all and hereby plead as follows –

(i) Ownership before the Land Use Decree 1978 and long possession

(ii) Estoppel by res judicata

(iii) Delay and acquiescence.

However before the suit could be heard on the pleadings, the defendants by their counsel applied by a motion on notice dated 17th September, 1985, for an order dismissing the whole suit and/or proceedings in this case on grounds of (i) res judicata and/or (ii) Abuse of process of the court and for such further order or orders as the Court may deem fit to make in the circumstances. The motion which was supported by an eight paragraphed affidavit sworn to by one Vincent Nwasi of Akwuete Quarter of Nnenyi village of Umuleri Town. The contents of the affidavit being a recapitulation of the defendants’ averments in their statement of defence, already reproduced above. But attached also, to the said affidavit, are exhibits marked’ A’ and’ A1′ being certified copies of the judgment and orders made in suit 0/73/57.

The plaintiffs responded to the defendants’ motion by filing, through one Uyammadu Oguguo of Ofianta Village, Nsugbe, an eight paragraphed counter affidavit. Apart from repeating certain of the averments made in their statement of claim he deposed in paragraphs 5, 6, & 7 of the said counter affidavit thus:-