E. A. N. Nwokafor & Ors. V. Mrs. Ifeyinwa Nworji Agumadu (2008)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LADAN TSAMIYA, J.C.A.

The action that culminated in this appeal was commenced by the plaintiffs (for themselves and on behalf of the members of Agulu-Awka Village, Awka) when they took out a writ of summons, against the defendant on 18th December 2002 claiming for General damages for trespass and injunction. Following the order of the trial court, the parties duly filed and exchanged their pleadings. The plaintiffs filed their statement of Claim which was later amended while the respondent filed with the leave of the trial. Court her statement of Defence out of time. The case was subsequently heard on the issues as joined by the parties in their pleadings.

The plaintiffs by their amended statement of Claim filed on 17/5/2005 pleaded thus (at pages 7-10 of the printed Record:)

1. The Plaintiffs are members of Agulu Awka Village, Awka in Awka South Local Government Area of Anarnbra State and bring this action for themselves and on behalf of members of Agulu Awka Village.
2. The Defendant is a petty trader and hotelier and resides at Umubele Quarter, Agulu village, Awka.
3. The land in dispute in this case is known as and called Ezinwafor square or Agulu Awka Village square.
4. The said parcel of land lies at Umubele quarter, Agulu Awka Village, Awka and is the communal property of the entire members of Agulu Awka Village Community.
5. The boundaries of the said land as well as the features thereon are more particularly shown and verged blue in Plaintiffs’ survey plan number SSC/AN-DO5/2004.
6. The land in dispute in this case forms part of a large expanse of land founded by the Plaintiffs’ ancestor Agulu Nebuzo. Agulu Nebuzo was a great hunter and discovered the land in dispute during one of his hunting expedition.
7. The land in dispute has since its founding been used by the entire Agulu Awka village Community in common. The said land is usually used as arena for customary title taking and other customary ceremonies in Agulu Awka Community such as Ajaghija title taking reception of dignitaries and also as a place for conferment of honours on worthy Agulu sons and daughters.
8. As owners in possession of the land in dispute, the plaintiffs have been exercising diverse acts of ownership thereon. The Plaintiffs built their town hall on part of the land in dispute. The said town hall is known as and called Ulonese Hall and is shown in Plaintiffs’ survey plan.

The plaintiffs also built a primary school on the land in dispute and have their revered juju shrines on the land in dispute. Some of the worshipped by the plaintiffs on the land in dispute are Aneke, Akputakpu and Ofoloko. All these features are shown in the Plaintiffs’ survey plan.

9. The Defendant in this case is the wife of late Nworji Agumadu from Umubele quarter, Agulu Awka Village, Awka whose compound abuts the land in dispute.
10. On or about the year 2000, the Defendant without the leave or license of members of Agulu Awka Village Community encroached on part of Agulu Awka village square by building an illegal structure thereon.

The area of the land in dispute encroached upon by the Defendant is shown verged pink in the Plaintiffs’ survey plan.

11. On noticing the provocative act of the Defendant, members of Agulu Awka committee the body charged with the day to day running of Agulu Awka village community invited the Defendant to a meeting. At the said meeting which was attended by the Defendant, she was asked to remove the illegal structure which she built on the land in dispute and she agreed to do so.
12. The Defendant notwithstanding her promise to remove the said illegal structure failed to do so. The Defendant’s late husband was thereafter visited by the Ndichies representing the seven quarters that make up Agulu Awka as he was then bedridden and was advised to prevail on his Wife to pull down the illegal structure she constructed on the land in dispute as earlier ordered by the Agulu Awka Committee. At the said meeting, the Defendant’s husband Nworji Agumadu told the Ndiehies that he built on his boundary line and that the conduct of the Defendant did not receive his blessing.
13. The Plaintiffs by a letter dated 14th day of November, 2002 written by their Solicitor, M.L Onochie Esq. again warned the Defendant to remove the illegal structure she built on the land in dispute within fourteen days from the date of the receipt of the said letter. The said letter shall be relied upon and the Defendant is hereby given notice to produce its original at the hearing.
14. The Defendant despite the receipt of the said letter refused to pull downs the said illegal structure and has vowed to continue in her act of trespass unless restrained by this honourable court.
15. By reason of the facts aforesaid the Plaintiffs have suffered loss.

Wherefore the Plaintiffs claim against the Defendant as follows:

(i) N1,000,000,00 (One million Naira) being general damages for trespass committed by the Defendant on Agulu village square lying and situate at Umubele quarter, Agulu Village Awka shown verge blue in Plaintiffs’ plan NO.SSC/An-D05/2004 prepared by A.I. Uduzue Esq. Surveyor.

(ii) An order of perpetual injunction restraining the Defendant, her servants and agents from committing further acts of trespass on the said land.

The statement of Defence of the Defendant is as follows:-

1. SAVE that the Plaintiffs are members of Agulu Awka the rest of the averment in paragraph 1 of the Statement of Claim is denied by the Defendant in its entirety.
2. In further answer to paragraph 1 of the Statement of Claim, the Defendant say that the Plaintiffs are dessident group in Agulu Awka and that the suit was brought against her because she refused to join them. The Defendant will at the trial of this suit contend that the Plaintiffs have no locus standi to bring this action and were never permitted by the Agulu Awka Community to bring the same.
3. The Defendant admit paragraph 2 of the Statement of Claim.
4. The Defendant admit paragraph 3 and 4 of the Statement of claim.
5. The Defendant deny paragraph 5 of the Statement of Claim and put the Plaintiffs to the strict proof of every allegation of fact contained therein. The Defendant says that the plan of the Plaintiffs is not an accurate plan, and that the land claimed by Plaintiffs as the land in dispute affects only a portion of the Defendant’s land.
6. The Defendant deny paragraphs 6, 7, and 8 of the Statement of Claim.
7. The Defendant admit paragraph 9 of the Statement of Claim and say that the Defendant’s land portion of which is now in dispute with the Plaintiffs, is shown verged blue in plan No. UGO/ AN-DO8/2005 made for the Defendant by licensed Surveyor, and attached to this Statement of Defence. The Defendant will rely on all the features in the plan during the trial of this suit.
8. The Defendant deny paragraphs 10, 11 and 12 of the Statement of Claim and put the Plaintiffs to the strict proof of every allegation of fact contained therein.
9. The Defendant deny paragraphs 13 and 14 of the Statement of Claim and in further answer thereto say that at no time was a letter written to her to dismantle an illegal structure and did not receive any letter from the said Solicitor, M.I. Onochie, Esq.
10. With reference to paragraph 15 (i) and (ii) of the Statement of Claim the Defendant say that the Plaintiffs are not entitled as claimed, or at all.
11. The Defendant further aver that the land verged blue is hers by right of grant inter wolves by her late husband, late Nworji Agumadu. The Defendant say that the portion of the land being falsely claimed is part of the land granted her by the said husband.
12. The Defendant avers that the said Ezenwafor square is demarcated from her land by a tarred road known as Agulu Avenue.
13. The Defendant will at the hearing of this suit urge the court to dismiss same on the ground that it frivolous, vexatious and gold-digging.

The trial Court heard the parties and their witnesses. The 1st plaintiff gave evidence and called one other witness while the Defendant though did not give evidence, she called only one witness before the case was adjourned for continuation of defence.

On the adjourned date, neither the defendant nor her witness was present before the trial Court and the case was further adjourned for continuation of defence when at the second adjourned date no more defence witness presented. The trial Court consequently closed the case for defence in view of the defence failure to bring any more witnesses. The case thereafter was adjourned for address.

The parties submitted their respective written addresses, and after going through the written addresses the learned trial Judge in his reserved judgment (of 4 pages) delivered the judgment on 26/6/2006 dismissing the whole claim in favour of the defendant with N20,000.00 costs.

Being dis-satisfied, the plaintiffs (here is referred to in this appeal as appellants) appealed to this Court on 3 grounds of appeal, as contained in their Notice and Grounds of Appeal filed on 16/8/2006.

In accordance with the Rules of this Court, the appellants filed their Brief of argument within time and the defendant (here in this appeal referred to as the respondent) also filed her own Brief of argument within time. The parties exchanged their respective Briefs.