Sunday Ukwu Eze & Ors V. Gilbert Atasie & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

UWAIFO, J.S.C. 

This is an appeal from a judgment of the Court of Appeal, Port Harcourt Division given on 8th June, 1993. The plaintiffs as members of Umuololo family in Ogwe village of Ukwa Division instituted this action in a representative capacity at the High Court, Aba on 9th December, 1976. They sought three reliefs against the defendants, namely (1) a declaration of title to a piece of land they call Uzo Egbelu Ogwe made up of three portions of land known as Akami, Ogbaku and Ugiri Egbede-Iyi Ekwe; (2) general damages of N2,000.00 for trespass; and (3) perpetual injunction. After a full hearing, the learned trial Judge gave a considered judgment on 26th March, 1985 in which he declared the plaintiffs entitled to the customary right of occupancy of the piece of land, awarded N500.00 as general damages and ordered perpetual injunction against the defendants.

The defendants raised a number of issues in their appeal to the Court of Appeal against that judgment. As I already indicated, judgment in the appeal was given on 8th June, 1993. The appeal was dismissed. The defendants (to whom I shall henceforth refer as appellants) again appealed and raised a number of issues as follows:

“(a) Was the Court of Appeal correct in holding that the plaintiffs/respondents who did not prove their traditional history pleaded as root of title were entitled to a declaration of title to the land in dispute based on the rule in Kojo v. Bonsie.

(b) Was the Court of Appeal correct in holding that the plaintiffs/respondents had exercised various acts of ownership in and over the land in dispute sufficient to warrant a declaration of title in their favour.

(c) Was the Court below right to have held that the boundaries of the land in dispute were proved.

(d) Was the Court of Appeal correct to have affirmed the trial court’s approach to the evaluation of the traditional history pleaded and given in evidence by the defendants/appellants.

(e) Did the court below misdirect itself when it held that:

“In the light of the evidence by both sides one is tempted to ask the question; why is it that at all material times, it is the respondents who are claiming that they pledged or let portions of the land in dispute to others. There was no iota of evidence or even a mere assertion that the appellants made a similar disposition in respect of the land in dispute.” and if so, did this lead to a miscarriage of justice

(f) Was the Court of Appeal correct in its interpretation of the provisions of section 132(1) of the Evidence Act in relation to Exhibits D and E and the document evidencing the alleged grant of land to the 1st defendant/appellant which was rejected by the trial court”

In their statement of claim, the plaintiffs (to whom I shall henceforth refer as respondents) founded their title to the land in dispute on traditional history. The averments in support of this are contained in paras. 5, 6 and 7 which I reproduce hereunder:

“5. From origin, the land in dispute had been the property of the plaintiffs through their great ancestor Ololo. Ololo deforested the land in dispute and exercised maximum acts of ownership over it including farming, lumbering and harvesting economic crops.

6. Ololo established Obasi Miri Shrine on the land and dug wells from which he obtained water. The wells so dug by Ololo and the shrine are still visible on the land in dispute and are still being ministered to and used by the plaintiff’s people.
7. The following heads of Umuololo family have controlled the land in dispute and sacrificed to the Obasi Miri Juju established thereon that is to say: Ekule, Agu, Ukpo, Elechi. Okirima, Okebe, Nnah, Atasie, Owuogba and Gilbert Atasie the first plaintiff.”

In the course of the judgment of the lower court, Edozie JCA who delivered the leading judgment said:

“I had earlier commented that it did not appear that the learned trial Judge found the traditional evidence of the respondents satisfactory. It is imperative for a plaintiff who seeks title and so relies on traditional history to plead the root of title and the names and the histories of their ancestors and to lead evidence in support of these:See A.N Akinloye & Anor v. Bako Eyiyola and Ors (1968) NMLR, 92 at 95, Total (Nig.) Ltd. v. Wilfred Nwako (1978) 5 SC 1 at 12, Elias v. Omo-Bare (1982) 5 SC. 25 at 57-58, Chukwu v. Nneji (1990) 6 NWLR (Pt.156) P.363 at 377; lnyang v. Eshiet (1990) 5 NWLR (pt.149) p.178. A party relying on evidence of traditional history must plead his root of title. He must show in his pleading and evidence, who those ancestors of his are and how they came to own and possess the land and eventually passed it to him: Ohiaeri v. Akabaje (1992) 2 NWLR (pt.221) p.1. The respondents pleaded that their ancestors Ololo founded the land in dispute and deforested same but in the evidence of PW1, he could not even say that their ancestor was Ololo although he stated they are Umuololo which respondent’s counsel said in lbo means, ‘children of Ololo’. He mentioned the names of the successive heads of their family through whom the land devolved to the present respondents but the names mentioned did not all agree with those pleaded.”