Anabaronye V Nwakaihe (1997)

LAWGLOBAL HUB Lead Judgment Report

ADIO, JSC. 

The claim of the respondent against the appellants in an action instituted in the High Court of Imo State of Nigeria, Oguta Judicial Division, was for a declaration of statutory right of occupancy over a parcel of land known as “Ohom Ndowaram” situate at Umuekwe. Mgbidi. He also claimed the sum of N10,000.00 being damages for trespass, and injunction.

The evidence led by the respondent was that one Ekwe, the great ancestor of the parties while living at Imeoha, Mgbidi, had six sons, namely, Ndebunwa (the ancestorof the defendants). Ochea, Marano, Ndowaram (ancestor of the plaintiffs). Oparaukwu and Iremgbidi. Ekwe’s six sons and his brother Uzurumike crossed from Imeoha and occupied a vacant adjoining piece of land called Oboro and settled thereon. The land in dispute was one of the four portions of the land occupied by Ndowaram, the great ancestor of the respondent’s family. He lived and fanned on them and, on his death, the land in dispute and his other parcels of land devolved on his male children as family land under Mgbidi customary law.

The family, as owners in possession, made use of the land in dispute for fanning and made permanent grants of some. portions of it to other people for residential purposes, including two members of the appellants’ family. At the end of the civil war, while.the principal members of the respondent’s family were at Oyo State, members of the appellants’ family took advantage of their absence, entered the land in dispute and elected bungalow buildings without the respondent’s permission. They committed other acts of trespass including the sharing among themselves of the land in dispute, which resulted in the bringing of the present action.

The appellant alleged that their own ancestor, Ekwe, had six sons. Two brothers from the appellants’ section, Dinwanyi and Oledibe, sons of Ndekuwa. as powerful warriors, drove away “orsu” people, occupied the land in dispute and re-named it “Oboro Dinwanyina-Oledibe”. They also alleged that portions of the land were al located to the other sons of Ekwe, including the ancestor of the respondent, who still retained his own portion of the land. The appellants further alleged that they were descendants of Dinwanyi and Oledibe, the owners of the family, including the respondent’s section and that they enjoyed and exercised maximum acts of ownership and possession over the whole land, including the portion now in dispute. They conceded that they engaged in swearing by “juju” with the respondent and alleged that they abided by the specification of one year.

After due consideration of the evidence led by the parties and the submissions of their learned counsel, the learned trial Judge gave judgment for the respondent. Dissatisfied with the judgment, the appellants lodged an appeal against it to the Court of Appeal, which affirmed the findings of the learned trial Judge and dismissed the appeal. Dissatisfied with the judgment of the court below, the appellants have lodged a further appeal to this court.

In accordance with the rules of this court, the parties duly filed and exchanged briefs. The appellants set down three issues for determination in their brief. The respondent too set down three issues for determination in his own brief. In my view, it is possible to use the issues for determination set down in the appellants’ brief for the determination of this appeal. I will, therefore, do so and they are as follows:

“(1) Was the Court of Appeal right in affirming the decision of the High Court on the plaintiff’s claim as formulated against the defendants the Umundebunwa family having regard to the plaintiff’s complaint on their pleadings, and the evidence led by the plaintiffs?

(2) Was the Court of Appeal right in taking the view that the trial court properly held that the Eze-in-Council found that the defendants had violated the “juju” Oath?

(3) Should the Court of Appeal have affirmed the judgment granting the plaintiff’s claims having regard to the fact that there was no conclusion or acceptable finding by the trial court that the defendants violated the ‘juju’ oath?”

The question raised under the first issue will now be dealt with. It was argued for the appellants that the court below’ ought not to have given judgment for the respondent because though the land in dispute was described by the respondent as the area edged yellow in the respondent’s survey plan (Exhibit “A”), the pleadings and evidence showed that the alleged trespass was committed on the area edged pink in the land in dispute edged yellow. It was also argued for the appellants that two of the members of the appellants’ family who committed the alleged trespass by erecting buildings or putting cement blocks on certain portions of the land in dispute were known and there was no evidence that they did what they did for and on behalf of their family. It was, therefore, contended that it was wrong for the respondent not to have sued the two known individuals alone.

On the contrary what the respondent did was not to make the two individuals parties to the present suit.

The two members of the appellants’ family who were identified as the persons who erected building on portions of the land in dispute were David Uzowulu and Joel Uzowulu. What happened was that the appellants’ family pleaded and relied on the erection of the buildings on the land in dispute as acts of ownership or of possession of the family of the land in dispute. The appellants’ family having adopted the trespass committed by some members of the family as its own, could not rightly complain that it was sued because of the wrong committed by members of the family which it had adopted as its own.

With reference to the complaint that the judgment of the learned trial Judge, which the court below affirmed, related to the vast area edged yellow, the position was that the area edged black, on which the trespass was committed, was within the land in dispute edged yellow. The respondent averred in the Amended Statement of Claim that the land in dispute was the area edged yellow in his survey plan (Exhibit “A”) and the parties joined issue on it. The portion or portions on which the alleged trespass was committed had to be clearly shown on the survey plan because, in law, the portion of the land trespassed upon must be clearly defined. See Elias v. Omo-Bare. (1952) 5 SC 25. In any case, the respondent averred in the amended statement of claim and there was averment in the appellants’ pleading that the land which was subject of the dispute between the parties edged yellow on the survey plan (Exhibit “A”) was shared among members of the appellants’ family for fanning purposes. David Uzowulu and Joel Uzowulu were members of the family of the appellants. As the appellants’ family had been sued it was not necessary for the determination of the case to make Joel and David Uzowulu parties to the case. They were not necessary parties to the present case. A necessary party to a case is a person whose presence is necessary for the effectual and complete adjudication of the questions involved in the cause or matter. See Uku v. Okumagba (1974) 3 SC 35; and Awani & Ors. v. Erejuwa II & Ors. (1976) II SC 307.