Ambrose Ekennia V. Benedict Nkpakara & Ors (1997)

LAWGLOBAL HUB Lead Judgment Report

I. IGUH, J.S.C.

In the Owerri Judicial Division of the High Court of the former Imo State of the Federal Republic of Nigeria, the plaintiff, who is now the appellant, for himself and as representing the Umuewere family instituted an action against the respondents, who therein were the defendants, for themselves and as representing the Umuga family of Otulu, Ahiara in Imo State, excluding the Umuewere family, claiming jointly and severally as follows:-

“1. N5,000.00 (Five Thousand Naira) being special and general damages for trespass to the piece or parcel of land known as and called” ALA ISIAHIA EWERE” situate at Otulu Ahia in the Owerri Judicial Division which has been in the peaceable possession of the plaintiff from time immemorial.

2. An injunction restraining the Defendants their servants and or agents from further acts of trespass to the said land.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged. The parties, from the said pleadings, are ad idem on the fact that they both belong to Umuga family of Otulu, Ahiara, that Umuga comprises of four kindred groups, to wit, Umuodagu., Amapu, Umuokelem and Umuno and that Umuodagu kindred is made up of two families, namely, Umuewere and Umuwaso families. The plaintiff is from Umuewere family while the defendants consist of the other kindred groups of the said Umuga extended family.

The case of the plaintiff as the representative of members of his family is that the land in dispute is known as and called “ALA ISIAHIA EWERE”. As owners of the said land from time immemorial, they, and before them, their ancestors had been exercising various exclusive acts of possession and ownership over the same without any interference from anyone whatever, including the defendants. He claimed that the land is essentially a farm land although their shrine which comprised of “Ogwugwu” and “Ihu Amadi Ogwugwu” jujus are located in the eastern portion of the land.

The plaintiff and members of his family had always reaped their various economic trees on the land, such as oil palm trees, raffia palm tress, breadfruit trees, oil bean trees and some timber trees without any let or hindrance from the defendants. He testified that in 1935, relations of the defendants trespassed on the land in dispute but were sued by them at the Ahiara Native Court in suit No. 192/35. Defendants relations filed a cross-action against them in the court. He claimed that both suits terminated in their favour. It is the defendants further trespass on the same land in 1975 that resulted in this action.

The defendants on the other hand, contended that the plaintiff and themselves are the communal owners of the land in dispute which they called “Okahia Umuga”. As such owners, the plaintiff and the defendants who together comprise of Umuga family exercised various acts of ownership communally on the land without any let or hindrance from anyone whatever. In particular, they owned and served their Ogwugwu and Amadi Ogwugwu Otulu shrines on the land.

The land had devolved from one generation of Umuga to the other until it devolved on the They gave evidence of various acts of ownership and possession exercised by the pmuga community over the land in dispute. These include harvesting of oil palm fruits and various other economic trees on the land and utilising the proceeds of their sale for the good of the community, construction of halls by different age groups on the land with the permission of Umuga community and the erection of market stalls and well for water by Umuga Community on the land. They claimed that the plaintiff had contested ownership of the land in dispute in suit No. 45/35 at the Ahiara Native Court and lost and that they cannot now reopen the matter.

At the conclusion of hearing, the learned trial Judge, Nsofor, J., as he then was, after some review of the evidence found for the plaintiff against the defendants and decreed as follows:-

“In the final analysis the plaintiffs claims succeed wholly and entirely, and the plaintiffs have judgment accordingly.”

Dissatisfied with this decision of the trial court, the defendants lodged an appeal against the same to the Court of Appeal, Port-Harcourt Division which in an unanimous decision allowed the appeal on the 16th day of March, 1992, set aside the judgment of the trial court and substituted therefore, an order dismissing the plaintiff’s action.

Aggrieved by this decision of the Court of Appeal, the plaintiff has appealed to this court. I shall hereinafter refer to the plaintiff and the defendants in this judgment as the appellant and the respondents respectively.

Five grounds of appeal were filed by the appellant against this decision of the Court of Appeal. These grounds of appeal without their particulars, complain as follows:-

“GROUND I: ERROR IN LAW: