Ama Akurunwa & Ors Vs John Okorie & Anor (1972)
LawGlobal-Hub Lead Judgment Report
UDO UDOMA, J.S.C.
There are two suits involved in this appeal. They were both consolidated and tried together in the High Court, Aba, in the East Central State.
The first suit, which was originally numbered A/34/58 but later as HOW/2/63, is a claim by the plaintiffs therein for themselves and as representing the people of Obeakuma village in Obudi Agwa against the defendants therein for themselves and as representatives of the people of Umunjam village in Amakohia for a declaration of title to two pieces or parcels of land known as “Okofia” and “Nwicha” in Obeakuma village, Obudi Agwa, Owerri Division; 250pounds damages for trespass and an injunction. The second suit is in like manner a claim for a declaration of title to “that piece or parcel of land known as and called “Okohia” and “Nwakpu”; 200pounds damages for trespass and an injunction.
It was instituted by the first defendant in suit No. A/37/58 on behalf of himself and the people of Umunjam Amakohia Family against the three plaintiffs in the said suit and two other persons as defendants “for themselves and on behalf of the people of Obeakuma Obudi Agwa family.” Like the first suit, it was originally numbered A/37/58 but later as HOW/8/65.
In his judgment, the learned trial Judge (Egbuna, J.) who heard both suits referred to the plaintiff in suit No. A/34/58/HOW/2/63 and defendants in suit No. A/37/58/HOW/8/65 as plaintiffs, and the defendants in suit No. A/34/58/HOW/2/63 but plaintiffs in suit No. A/37/58/HOW/8/65 as defendants. In this appeal, the appellants are the defendants in suit No. A/34/58/HOW/2/63 and plaintiffs in suit No.A/37/58/HOW/8/65 and will henceforth be referred to as such, the plaintiffs in suit No. A/34/58/HOW/2/63 and the defendants in suit No. A/37/58/HOW/8/65 being herein at all times to be referred to as respondents.
Pleadings and plans having been ordered, were duly filed and delivered in both suits. At the trial both sides gave evidence, called witnesses and produced and tendered a number of Native Court proceedings and judgments as well as plans of the land in dispute claimed by either party. The plan of the land in dispute claimed by the respondent herein was admitted and marked Exhibit ‘E’, while that which was put in by the appellants was marked Exhibit ‘F’ in the proceedings. The plan, Exhibit ‘E’, bears the number EC59/58 as well as the signature of the Licensed Surveyor Chodilue, who prepared it, and is dated 10th June, 1958; but the plan, Exhibit ‘F’, which was prepared by Licensed Surveyor Onochie is dated 27th December, 1962 and numbered CA/75/62. It is a composite plan and contains the area of land claimed by the respondents and shown and delineated in Exhibit ‘F’ and is in the said plan, Exhibit ‘F’ verged green. From the plan, Exhibit ‘F’, it is apparent that the area of land claimed by the respondents is different from and smaller than the area of land claimed by the appellants, which is the subject matter of suit No. A/37/58/HOW/8/65. It is, however, not wholly enclosed within the area of the land claimed by the appellants as shown and delineated in Exhibit ‘F’ as certain portions thereof lie outside Exhibit ‘F’.
Of the Native Court proceedings and judgments put in and marked as exhibits in the proceedings, only two are relevant for the purpose of the present appeal. These are, the Ara Umunwoha Civil suit No. 14/47 – Igbo Mgbachi of Amakohia v. Njirinzu and Onuwuchia of Obudi Agwa – Exhibit ‘B’; and No. 13/54 – Ama Akurunwa and Okehi Opurum – for themselves and others of Umunjam Amakohia v. John Okorie and 5 Others – all of Obeakuma Obudi Agwa – Exhibits ‘C’, ‘C1’ and ‘C2’. Indeed, in view of the fact that the final order made by the Resident on appeal in suit No. 13/54, Exhibits ‘C’, ‘C1’ and ‘C2’ of 12th June, 1956 was a “nonsuit pending the final determination of suit No. 14/47”, Exhibit ‘B’ aforesaid, it seems pertinent to state that the only subsisting and effective and relevant judgment having regard to the issues involved in this appeal is the judgment in suit No. 14/47, Exhibit ‘B’.
Both the respondents and the appellants herein attach some importance to suit No. 14/47, Exhibit ‘B’, in that they both pleaded it both in their statements of claim and defence in both suits; but – and this is not without significance – neither the respondents nor the appellants herein pleaded it as an estoppel either per rem judicata or in pais.
In suit No. A/34/58/HOW/2/63 the only reference which the respondents made to the Native Court suit, Exhibit ‘B’, is contained in paragraph 8 of the statement of claim dated 5th August, 1958 and reads thus:-
“8. In suit No. 14/47 an action for declaration of title and trespass on the land known in the action as Okpoweze was instituted by Igbo Ngbachi of Amakohia against Njirinzu and others of Obudi Agwa but the action failed. This land called Okpoweze by Igbo Ngbachi in his action belongs to the plaintiff to who (sic) the land is known by the name of Okpohoboro.”
The averment contained in paragraph 8 of the respondent’s Statement of Claim was answered by the appellants in paragraphs 7 and 8 of their final statement of defence dated 20th June, 1963 in the following terms:
“7. The defendants aver that paragraph 8 of the Statement of Claim is typically frivolous and should be struck out.
8. About 1954, there was a land dispute between one Nwigbo Ngbachi of Umuike Amakohia and Njirinzu of Obeakuma village. During the course of the case the defendants discovered what was described as a temporary boundary being made between the parties to the case. This said boundary cut into the defendants’ land called “OKOHIA” which is now in dispute. The 1st defendant promptly took out an action suit No. 13/54 against the plaintiffs. Judgment was given for the plaintiffs and on appeal to the Resident the then plaintiffs i.e present defendants were non-suited. The plaintiffs have referred to the said case No. 13/54 in paragraph 9 of the Statement of Claim but have deliberately obscured the real decision in the said case, and by giving the impression that judgment was in their favour.”
The Native Court suit No. 14/47, Exhibit ‘B’, was also pleaded by the appellants in paragraph 7 of their statement of claim dated 7th November, 1958 in suit No. A/37/58/HOW/8/65 as follows:
“7. In 1947, one Igbo Ngbachi from Umuike village in Amakohia town in Owerri Division took out action against Njirinzu and another of Obudi Agwa claiming title to a land known as and called by the parties as “Okpoweze” and “Okponwaoboro” respectively in Ara Umunwaoha Native Court suit No. 14/47. Both parties to the suit have nothing in common with the plaintiff and his people in this present suit. During the course of marking out an interim boundary between the parties to that suit as ordered by the District Officer, the defendants trespassed into the land which is the subject matter of this action belonging to the Plaintiff and his people and included the Plaintiff’s land as a portion of the defendants’ land.”
The answer to the averments set out above is to be found in paragraph 9 of the respondents’ Statement of Defence dated 8th January, 1959 which is as set out hereunder:
“9.In reply to paragraph 7 of the Statement of Claim, the defendants state that in suit No. 14/47 an action for declaration of title and trespass on the land known in the action as Okpoweze was instituted by one Igbo Mgbachi of Amakohia against Njirinzu and others of Obudi-Agwa but the action failed. This land called Okpoweze by Igbo Mgbachi in his action belongs to the defendants the land is known as Okpohoboro”.
As already stated above, at the trial of the consolidated suits in the High Court, evidence was called by both the respondents and the appellants herein. The learned trial Judge at the conclusion of the hearing including addresses by Counsel on 21st June, 1965 reserved judgment until 30th July, 1965. But on 30th July, 1965, when the case was called, instead of judgment, the notes made by the learned trial Judge read as hereunder set forth:-
“Parties present.
Mr. Umezinwa for plaintiff, and
Mr. Njiribeako for defendants.
Judgment further adjourned for plan tendered in Exhibit B to be produced as it formed part of the proceedings. This proceeding was relied upon by both parties, but in defendants’ plan the boundary shown does not extend far south as shown in plaintiffs’ plan. The court would like to have the original plan or copy used in the proceedings in Exhibit B.
Adjourned till 20/8/65
(Sgd.) W. O. Egbuna, Judge,
30/7/65.”
Then on 20th August, 1965 even though the plan was not produced, the case was adjourned to 8th September, 1965 on which date the learned trial Judge delivered his judgment wherein he granted the respondents a declaration of title to the two pieces of land shown and verged pink in their plan No. EC59/58, awarded them ‘a3100 damages for trespass and an injunction as sought. The claims of the appellants were dismissed. Costs were assessed at 60 guineas. In granting the respondents the reliefs sought the learned trial Judge based his judgment almost entirely on the proceedings and judgment in suit No. 14/47, Exhibit ‘B’, which was the only evidence examined by him, although in the penultimate paragraph of his judgment he said:
“I am satisfied on the evidence led by the plaintiffs coupled with the proceedings in Exhibit ‘B’ that the plaintiffs are entitled to the declaration sought.”
In dealing with the proceedings and judgment in suit No. 14/47, Exhibit ‘B’, and its effect on the present proceedings, the learned trial Judge in his judgment said:
“Unfortunately this land, Okohia was given to plaintiffs when the Native Court members concluded their case on 18/4/57 and gave their final judgment.
I do not think that the defendants can be heard to say they were not parties in that suit and that that decision is not binding on them.
“The people of Amakohia seem to have recognized this boundary made by the 10 chiefs and adopted by the Customary Court for in suit 28/62 taken out by them against some Obeakuma people they based their claim on this demarcation made. See Exhibit ‘H’ tendered, by defendants.
The claim refers to suit No. 14/47 as basis of their claim. Defendants in that suit admitted crossing the boundary and farming on the part of Okpaeze on Eastern side of the boundary awarded to Amakohia people. Part of what Obudi Agwa people said in that suit reads:
‘My people and I farmed on it. We will surrender the said land to plaintiff after harvest this year. The land originally belongs to me, but goes over to the plaintiff as a result of the boundary made during the Amakohia and Agwa land dispute. This land was then awarded to plaintiff. I will in turn take the plaintiffs’ own land which goes over to our side as a result of the boundary.’
Since the Native Court of Ara Ununwoha gave decision in suit 14/47 which was presided over by Mr. F. I. Ashworth D.O. there was no appeal against that judgment. It is still binding on the parties. I have already indicated that Umunjam people were parties to this suit in the sense that they were aware when this case was going on and part of their land included in the demarcation and kept quiet to see what would be the outcome hoping that portion would be awarded to their ‘brothers’ – Umuike people.
“I have studied the proceedings in Exhibit ‘B’ and my interpretation of it is that each side owns land on only one side by virtue of the decision. It was a demarcation made of lands between Amakohia and Obudi Agwa in order to stop endless troubles between both towns.”
The present appeal is against the judgment of the learned trial Judge from which the above quoted passages have been taken. Only two grounds of appeal were argued before us, namely,
(1) That the judgment is against the weight of evidence; and
(2) That the learned trial Judge erred in law when he held that the appellants were bound by the judgment of the Native Court in suit No. 14/47, Exhibit ‘B’ that is, to which the appellants were not parties and in which the subject matter was not the same as the one adjudicated upon by the High Court.
In support of these grounds of appeal which were argued together, Chief Williams, learned Counsel for the appellants submitted that the learned trial Judge failed completely to evaluate the mass of evidence led before him and therefore made no findings thereon but based his judgment entirely on the proceedings and judgment in suit No. 14/47, Exhibit ‘B’, to which the appellants were not parties. Learned Counsel contended that the land in dispute in suit No. 14/47, Exhibit ‘B’, was different from the land in dispute in both suits No. A/34/58/HOW/2/63 and No. A/37/58/HOW/8/65 and so too were the parties thereto. He pointed out that the appellants herein are the people of Umunjam village which is only a section of Umuokohia town in Owerri Division, and similarly that the respondents are also the people of Obeakuma village which is apparently also a section of Obudi Agwa town in Owerri Division; that the Native Court suit No. 14/47, Exhibit ‘B’, was instituted by Igbo Mgbachi of Amakohia against Njirinzu and another of Obudi Agwa, the land then in dispute being called Okpoweze and therefore not the same as “Okofia” and “Nwicha” lands claimed by the appellants; and that the learned trial Judge was therefore wrong in law to have treated the parties in the present suits on appeal and the lands the subject matter of the said suits as the same as those in suit No. 14/47, Exhibit ‘B’.
We think these submissions are well founded. They are sound. It is patently clear that the learned trial Judge made no attempt whatsoever to evaluate the evidence which was led by both respondents and appellants before him other than the proceedings and judgment in the Native Court suit No. 14/47, Exhibit ‘B’. He undoubtedly based his entire judgment on the proceedings and judgments in the same Native Court suit No. 14/47, Exhibit ‘B’, which, in our view, he erroneously treated as operating as estoppel either per rem judicatam or in pais, one is not really sure which, even though the said proceedings and judgment, Exhibit ‘B’, were never pleaded as having any such force and effect, a point which was conceded by Mr. Ezeuko, learned Counsel for the respondents, who appeared in his submission to have criticised the judgment even more severely than the learned Counsel for the appellants by stating that there was no real foundation or basis for the said judgment of the learned trial Judge.
In view of the order we propose to make, we would refrain from commenting in detail or even generally on the proceedings and judgment in suit No. 14/47, Exhibit ‘B’, except to make the following observations:-
(1) Suit No. 14/47, Exhibit ‘B’, was instituted by Igbo Mgbachi of Amakohia against Njirinzu and another of Obudi Agwa; but it should also be noted that on 12th June, 1956 in the course of hearing the appeal in suit No. 13/54 the Resident described the real plaintiffs in suit No. 14/47, Exhibit ‘B’, as Umu-Ike, the brothers of Umunjam (See proceedings, Exhibit ‘B2’).
This finding has been repeated and re-emphasised by the learned trial Judge in the suits on appeal when he said:
“Umunjam is a village in Amakohia. They did not apply to be joined in that suit. It would appear the defendants were advised to await the outcome of civil suit 14/47 from the land “Okohia” they were claiming might be awarded to Umuike people and not to plaintiffs (Okohianwa). Umuike are ‘brothers’ of defendants.”
(2) The claim therein was for a declaration of title to a piece of land known as Okpoweze and 10pounds damages for trespass.
(3) The court which was empanelled to hear the case comprised five chiefs and the Assistant District Officer F.I. Ashworth as President.
(4) When the court assembled for the commencement of the hearing of the case on 15/4/57 it was reported that the case has been settled out of court in compliance with the order of Assistant District Officer Burgess. The court thereupon turned its attention to the investigation of the genuineness and effectiveness of the terms of settlement, which it carried out in some detail.
(5) In the course of its investigation, the court found that the settlement consisted in the fixing of a boundary between the contesting parties, and, to ascertain the said boundary, the court made elaborate and extensive use of the survey plan, Exhibit ‘A’ in the proceedings then. The boundary was finally defined in terms of and tied to the plan Exhibit ‘A’ aforesaid, when the court delivered its judgment on 18th April, 1957. This must have accounted for the conduct of the learned trial Judge in the present suits on appeal in calling for the plan mentioned in his notes of 30th July, 1965.
(6) A declaration of title to the land called Okponwaze described as verged pink in Exhibit ‘A’ would appear to have been granted to the plaintiffs in that action as represented by Igbo Mgbachi of Amakohia and not to the people of Obudi Agwa as represented by Njirinzu and another; for in its judgment the Native Court said:
“In view of the fact that the parties say that they have settled using the boundary traced by the ten court members we award title to all that land called Okponwaeze by the plaintiff shown edged pink in the plan Exhibit ‘A’ before the court which lies to the east of the line ABCDEFGHJK as shown on the plan.”
This, however, is a matter for proper inquiry at the rehearing.
(7) Finally in the last paragraph of the judgment we find the following:
“Any one claiming land across the boundary must establish his claim in relation to the various portions shown on the plan, Exhibit ‘A’ so that a true record of the proper boundary may be maintained by this court.”
Which we set out without any comment.
In all these circumstances, we are of opinion that the judgment of the Aba High Court in these suits is most unsatisfactory and should not stand. The appeal must be and it is accordingly allowed. The judgment and order of the learned trial Judge granting a declaration of title to the respondents as plaintiffs in the Aba High Court suit No. A/34/58/HOW/2/63 and the defendants in suit No. A/37/58/HOW/8/65 and awarding them 100pounds damages for trespass and an injunction with costs must be, and are hereby set aside. The judgment and order of the learned trial Judge which dismissed the claim of the appellants as plaintiffs and defendants in the suits aforesaid are also hereby set aside.
We order that the suits be sent back to the Aba High Court to be there heard de novo by another Judge, and that the parties hereto be at liberty to amend their pleadings, if they so desire. The costs in the High Court to abide the event. The appellants are entitled to their costs of this appeal which are assessed and fixed at 140 guineas.
Other Citation: (1972) LCN/1393(SC)
