Adele Ihunwo & Anor V. Johnson Ihunwo & Ors (2004)

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VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A.

This is an appeal against the decision of the High Court sitting in Port Harcourt of Rivers State judiciary. The decision was given on 2nd February 2001 in suit No: PHC/459/93, Coram D. W. Okocha; judge of the High Court.

The facts of the case in the court below is as follows. The 1st plaintiff is the father of the 2nd plaintiff. The 1st defendant is the elder brother of the 1st plaintiff of the same parents; and he is the father of the; 2nd to 4th defendants.

The issue in dispute is the claim by the plaintiff that the 1st plaintiff is the owner by a grant made orally of the land known and described by the plaintiff as “Ohia npa mini Chinda”. The defendants called the land “Ohia Nkpomini Ihunwo Echeonwu”.

In the court below the plaintiff deposed that some time in 1949, the then head of the Wele family named Ikendu also known as Josiah Okamkpa, asked the 1st plaintiff in two consecutive years to rid a bush known as bad bush in “Ohia Npa mini chinda” of “awhiri’ plant and take the land thereby. The 1st plaintiff who testify as PW1 said it took him all of five years to rid the land of “awhiri” dangerous plant, which had infected the land and destroyed the raffia palms on the land and a neighbouring land. Awhiri plant is allegedly dangerous in contact with human body; consequently, no one wanted to go to the marshy land where awhiri resided.

The bush was called the bad bush because it was where the people were buried who died of small pox or chicken pox; it was a forbidden forest.

It was at the Riagbo meeting of the elders when in the free period the elders gathered to relax; the then head of the Welle family in the presence of elders Genesis Wopara, Magnus lhunwo, Michael Okamkpa, Ralph Amadi, Benjamin Amadi and Owajungba Worgu; that elder Ibandri Okamkpa gave to the 1st plaintiff his land in dispute. The said land was acquired by conquest of the people of Iriebe; who originally owned the entire large area of land. The family of Wele, Chinda and Wokerebe fought Iriebe people and acquired the said larger parcel of land. From the time that the 1st plaintiff said he was advised by one Alferlihar a land or forester, to set fire to burn the frightful awhiri plant, he took possession of the said land, after filling it with sand or soil.

Over the years the 1st plaintiff planted on the said land economic crops and trees, like palm wine trees, mangoes and various economic crops. In doing so without let or hindrance, with acknowledgement from several people that the land belong to him the 1st plaintiff deposed that he was exercising right and claims of ownership to the said land until recently in the nineties When the defendant wrongfully entered the land and destroyed all the economic trees. The defendant’s claim they belong to the family of Ihunwo part of the Wele family to which the 1st plaintiff also belong.

The defendant averred in their statement of defence, but did not testify in the, High Court, that the story of the 1st plaintiff is untrue that 1st plaintiff was given the land in dispute by Ikendu Akamkpa and other elders, because in 1949, the 1st plaintiff was about 26 years and there were people older than the 1st plaintiff at the time more suitable to perform the task of clearing the land in dispute. The defendant through its witnesses said that the land in dispute was required for allocation to other members of the family who had no land yet. They deposed that the matter of ownership of the land has been resolved in an alleged tribunal, which determined possession and ownership of the said land in the Ihunwo Unit family and not to the 1st plaintiff. At the hearing in the court below, the judgment of the native arbitration was tendered by the defendant as exhibit B.

The plaintiff denounced the judgment of the native arbitration, and said though he had at first voluntarily attended it, but as the defendants attacked and stabbed his son he had withdrawn from the arbitration before its conclusion and did not participate in it before it delivered its bias judgment in the testimony of the defendants alone. He urged the court to discountenance the contents of exhibit B since it is a judgment from a court not known to law.

The plaintiff cited the case of Inyong v. Essien 1975 NSCJ where the Supreme Court held as ineffective and incompetent a judgment delivered by a tribunal of Imams; not created by raw. The plaintiff with the 2nd plaintiff testified and called four other witnesses tendered the plan of the land in dispute as exhibit A, the defendant who were said in personal capacities did not testify but called 3 witnesses.

At the close of evidence the court ruled thus inter alia –

“I am not minded to accept the assertion by the learned counsel for plaintiff that the defence use of exhibit B, was to operate as res judicata, to the suit. Rather what I can discuss is that evidence adduced in exhibit B were relevant to the issue before the court as to ownership of the land in dispute, and the plaintiff having willingly submitted himself to the arbitration panel, he could not now deny a …… from the verdict.”

Prior to this the trial court had recorded thus –
“l can discern that the land in dispute was Rumuihunwo family land. The said land with a larger position was pledged to the plaintiff by the Rumuwele family for 20 pounds in 1951; and the 1st plaintiff has been in possession since 1951 for 41 years. The land in dispute was wrongly allotted to the 1st plaintiff by Handry Okamkpa, as he had no customary right to do so.”