Aaron Okoro Mbubu V. Anukwaeje Obori & Anor (2002)

LawGlobal-Hub Lead Judgment Report

SYLVANUS ADIEWERE NSOFOR, J.C.A.

The appellants herein, qua plaintiffs in the Court of trial had claimed, as per paragraph 20 of the Amended Statement of claim jointly and severally against the defendants as follows:-

“1. N1, 000 (one thousand Naira) as General Damages for trespass

(ii) A perpetual injunction restraining the defendants by themselves, their agents, work men servants or privies from further trespassing into the land in dispute.”?

Written pleadings were ordered. They were filed, delivered and exchanged. The plaintiffs, subsequently, with the leave of Court filed amended pleadings. The case has, therefore, fought and contested on the issues, joined on the pleadings finally settled at the amended Statement of Claim, copied in pages 40 to 45 of the Record of Appeal and, the original Statement of Defence, copied in pages 21 to 25.

The case came on for trial before A. A. Ononuju, J. on the 9th of June, 1987, when the actual hearing started. Both parties testified and called the evidence of other witnesses. At the conclusion of all the evidence (both oral and documentary) and after receiving the final oral addresses by the counsel, the learned trial Judge reserved his Judgment.

In a reserved and well considered Judgment, the learned trial Judge dismissed the claim of the plaintiff in its entirety. Before reaching his conclusion, the trial Judge made far reaching findings of fact to wit: that (1) the land in dispute is situate in Okwudor within the Nkwerre/Isu Local Government Area and, (ii) the land in dispute was on a pledge, created by the father of the first defendant with the father of the first plaintiff (Aaron Okoro Mbubu).

The Facts:- Briefly stated, the case of the plaintiffs as pleaded, was that the land in dispute which they called “ALA OHIA EKE MBUBU” was situate in the Umuezeala Umuezime village in Nkume within the Nkwerre/Isu Local Government Area. The land was as depicted in their survey plan No. VEN/D52/85 dated 16th April, 1985 (Exhibit A). Thereon, the land has verged PINK. As the plaintiffs pleaded in their paragraph 7 of the Amended statement of claim, “the land in dispute originated from the family of the plaintiff who inherited the said land from his forefathers. The said land was the property of Nkume the founder of Nkume, town who was survived by four sons to wit “It was part of their case that on the death of Nkume the four sons shared his landed property and the land in dispute was the share of Ezime. The land, thereafter, devolved successively from one member of the plaintiffs’ family to the other until eventually, it passed over to Mbubu, of whose death the land devolved on Okoro Mbubu, as a result of the sharing of the lands amongst the four sons of Mbubu.

According to the plaintiffs, Okoro Mbubu (the 1st Plaintiff’s father) during his life permitted the sister Agnes Mgbanyi to farm the land in dispute. On the death of Okoro, his sons permitted Agnes Mgbanyi to continue farming the land in dispute. But in 1983, the plaintiff (Aaron Okoro Mbubu) cleared the land, cut down two Iroko trees on the land, and “bulldozed the land preparatory to setting up a hospital complex thereon. In September, 1st 1983 one Dr. Godwin, Uduji and Nicholas O. Mbubu were granted a certificate of Customary Right of Occupancy (Exhibit C) for a term of ninety-nine (99) years with effect from the 1st of December, 1983 by the Nkwerre/Isu Local Government, Authority in respect of the land. It was the plaintiffs’ case that on the 8th of October, 1983, the plaintiff (Aaron Okoro Mbubu) and some members of his family came to the land in dispute. They saw posted on the land a sign board. On the sign board was the inscription “land belonging to Umuenyimba Okwudor Community”. According to them, the 2nd defendant rushed into the land menacingly assaulted some of them including Uzoukwu Mbubu (P.w 2) for which the 2nd defendant was reported to the police and charged in Charged No. MNK/304C/83. The Charge is still pending in the Magistrate’s Court, Nkwerre.

Further more, as the plaintiff alleged, on the 16th of January 1984, the defendants, together with some thugs, planted some cassava plants on the land and deposited some white sand thereon preparatory to building on it.

As pleaded in paragraph 16 of the Amended statement of claim, “the defendants falsely claim that the land in dispute was pledged many years ago by Obori, the father of the 1st defendant to Okoro Mbubu, the father of the plaintiff for the sum of N24.00 (Twenty-four naira). In pursuance of the spurious claims of the defendants, the 1st Defendant has instituted Suit No. MNK/6/85 against the plaintiff at the Senior Magistrate’s Court Nkwerre claiming inter alias, for an order by Court that the plaintiff accepts from him the sum of N24. 00 which he descripted as redemption fee”.

The plaintiff denied there was a pledge of the land to his father or any attempts by the 1st defendant to redeem the pledge from either his father (Okoro Mbubu) before his death or, since after his death, from him.

According to the 1st plaintiff, Suit No. MNK/6/85 was a mere devise to contest the Charge No. MNK/304C/83. suit No. MNK/6/85 is still pending. The conduct of the defendants, is the plaintiff alleged, had put on hold the sitting of the hospital complex on the land in dispute. Hence the action:

The 1st defendant (Anukwaeje Obori) on his part set up a case parallel to the plaintiffs”.