Anieka Melifonwu & Ors V. Charles Ezenwa Egbuji & Ors (1982)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C 

The parties in these proceedings have a common ancestral origin. They all descended from Ezechima Ogbuefi, who was said to be the founder and the first king of Onitsha. It is common ground that he had three surviving sons, namely, Ebo, Chimaukwa and Ezearoli. Ebo was the eldest son while Ezearoli was the youngest. The first and second appellants descended from Ebo while the 3rd and 4th appellants descended from Chimaukwa. The respondents had Ezearoli as their ancestor.

There was a fourth son, Anwula, who predeceased their father and because of his premature death the descendants of the fourth son are not parties to these proceedings. It is also common ground that during his life time their father, who owned a large parcel of land although there is no evidence of the exact site of his “Iba” (traditional compound) thereon, divided his land into three portions among the three surviving sons and after his death each son took possession and assumed occupancy of the portion allotted to him.

The main question for determination in these proceedings has been: to whom was the land in dispute given by their ancestral father In other words, was it the portion given to Ezearoli as claimed by the plaintiffs, who are the respondents herein, or was it part of the portions given to Ebo and Chimaukwa as asserted by the defendants, herein the appellants

The land in dispute has been called by different names by the parties. The appellants call it “Owelle Ebo-na-Chimaukwa” or “Ani Ebo-na-Chimaukwa” and refer to a portion of it as “Owelle Chimauka” or “Ani Chimaukwa”. The respondents on the other hand call it “Ani Ezearoli” or “Achalla Ogbogidi” or “Owelle Ebo.” The said land is delineated and edged green in the two plans of the respondents No. MEC/403A/67 and MEC/282/57, Exhibits B and C respectively in these proceedings. The same land is verged pink and blue in the two plans of the appellants No. MEC/110/63 and MEC/385.73, Exhibits D and E respectively. Despite the difference in nomenclature and in the shades of colour, the learned trial Judge found the boundaries and features of the land in dispute to be well defined in all the plans of the parties and concluded that the dispute concerned one and the same land which is easily identifiable from the plans.

At this stage it may also be pointed out that at the material time when the suit in these proceedings was instituted, the appellants’ people were in possession of the land in dispute and some of them were living in houses they had built thereon. The suit No. 0/28/1972 was filed in the Onitsha High Court in which the respondents claimed against the appellants jointly and severally for:-“1. A declaration that the piece and parcel of land situate at Onitsha within the judicial division commonly called and known as Aniezearoli, Achalla Igwegidi or Owelle Ebo is the property of the plaintiffs (Annual Value 20 pound:97s:).

2. Perpetual injunction restraining the defendants, their servants, and agents from further interference in the said land.
3. 100 pounds being general damages for trespass.”

The fulcrum of the respondents’ case from their pleadings was that the land in dispute was the portion allotted to Ezearoli, who upon the death of the grantor – Ezechima Ogbuefi – became the king of Onitsha and took possession of the said land, that after he had occupied the land for many years, Ezearoli became ill and went to Igala for treatment, that after he had been cured of his illness, he returned to Onitsha where in obedience to sooth-sayers who advised him to change his place of abode for his health he did not return to his residence on the land in dispute but he settled at a new place where the respondents now reside. The respondents averred that when Ezearoli vacated the land in dispute, he appointed a caretaker and since then successive care-takers including some of the appellants’ people have been employed by the respondents’ people to take care and manage the land in dispute for and on behalf of the respondents’ people. They said the appellants have their own land, i.e. the portions allotted to their ancestors – Ebo and Chimaukwa, which is not the land in dispute. Nevertheless, since the end of the civil war, the appellants have continued to trespass on the land in dispute by farming thereon despite repeated warnings by the respondents.

In their defence, the appellants averred that the land in dispute has been wholly their own land. They said a portion of it on which Ezechima had built his “Iba” (original home) had been allotted to Ebo who, being the “Okpala” (the first son alive) was entitled to inherit the “Iba” under the Onitsha customary law, was buried thereon and had his shrine and “Iba” still on the portion thereof; that another portion of the land in dispute had been granted to Chimaukwa who was the “Onowu Iyasele” (the Prime Minister) of Onitsha during his father’s life time; and that later the descendants of Ebo and Chimaukwa have been using in common the said two portions, which comprise the land in dispute, granted to their ancestors. The appellants further stated that members of their families had built houses on the land in dispute without let or hindrance by the respondents; that over a century ago the appellants had given a portion of the land in dispute to Umuokoviowo whose descendants have been farming and exercising other rights of possession over the portion ever since. They denied that any member of their families has ever been a caretaker of the land in dispute for the respondents and traversed that the members of their families who have been on the land in dispute have been thereon as of right as owners by inheritance. They further averred that the land where the respondents’ people now live, which the respondents allege to be the new settlement founded by Ezearoli on his return from Igala, was the very portion granted to Ezearoli by his father, Ezechima Ogbuefi.

In a well considered reserved judgment the learned trial Judge, after having meticulously reviewed the evidence of the witnesses called by the parties and the submissions of learned counsel, believed and accepted the traditional history and recent history of the land in dispute as told by the respondents and entered judgment for them. Because the appeal in this court turns out to be principally on question of facts only, I consider it appropriate to set out in detail the findings of facts by the trial Judge on the contested issues. He found as follows:-

1. that the land in dispute was allotted by Ezechima to Ezearoli who, after four or five Obis of the Dei Dynasty had succeeded to the throne of his father, became the king of Onitsha;
2. that on the death of Ezechima Ezearoli took possession and occupied the land in dispute for many years until he vacated it and put a caretaker thereon when during his reign he went to Igala for medical treatment;
3. that on his return to Onitsha, acting on the advice of his sooth-sayers on account of his health, Ezearoli did not settle at his former abode but founded a new settlement wherein his descendants including the respondents have been residing ever since,
4. that since Ezearoli’s sojourn in Igala land to the present day, Ezearoli and his descendants have been employing caretakers to look after and manage the land in dispute, to put tenants thereon and collect the rents and hand over the same to Ezearoli people and that among such caretakers was Ogudebe Agba, a principal member and “Okpala” of the appellants’ families, whom Chukwudebe of Ezearoli people had employed as such;
5. that in Suit No. 143/1908 between the privies of the parties in this appeal, decided by the Onitsha Native Court in 1908, Exhibit A in these proceedings, that court found the said Ogudebe Agba to be a caretaker of the land in dispute for the Ezearoli people and enjoined him to lease the land to farmers, collect the rents and hand over the same to Chukwudebe for sharing among the Chief of Ezearoli people, the respondents, and in consequence thereof the learned trial Judge further held that the said suit constituted estoppel per rem judicatam against the appellants;
6. that the appellants have been on the land in dispute through the said Ogudebe Agba who was merely a caretaker in occupation of the land in dispute with the consent and permission of the Ezearoli people and Ogudebe Agbe, the caretaker, changed the name of the land in dispute to “Owelle Ebo” because it borders on Ebo’s land;
7. that the respondents did not sleep over their right in respect of the 1949 case in the Onitsha Native Court between the Isiokwe people and Iyiawu people over a portion of the land in dispute but had taken all the necessary steps to the joined as defendants though the court did not give them the indulgence to be so joined;
8. that in respect of the plan No. CC/60A/49 and its office copy, Exhibits F and G respectively in these proceedings, made by the late C.C. Emordi for the appellants for the 1949 case aforesaid, the learned trial Judge made the following pungent observations:

“Looking at Exhibits F and G, which I have held were made for the defendants, there are clearly some erasures which are revealing. Comparing plaintiffs’ plans Exhibits B and C (made for these proceedings) with late C.C. Emordi’s plan No. CC/60A/49 Exhibits F and G, it is easy to see that the north western limit claimed by the plaintiffs coincides with the north western limit of the line drawn in Exhibit F where it is clearly written boundary between Chima Ukwa and Eze Aroli.

This same line was described in Exhibit F as “Owelle Ebo”. A close look at Exhibit F shows that an attempt has been made to erase the line thereon running from the body of the plan. Looking at defendants’ plans made for this case, Exhibits D and E, it is astonishing to observe that what defendants wrote in Exhibits F and G are conspicuously missing from Exhibits D and E. In Exhibits F and G there is inserted thereon ‘Land of Eze Aroli transferred to Ebo’ but this again is absent in defendants’ plans made for this case, Exhibits D and E. The question that now arises is, what is the significance and effect of both the erasures in Exhibits F and G and defendants’ plans for this case, Exhibits D and E I may again mention here that the defendants during the hearing of this case apparently paid scant attention to the erasures and discrepancies in their plans Exhibits D and E and F and G. I am however satisfied that the erasures spotted out on plan No. CC/60A/49 Exhibits F and G made for the defendants by late C.C. Emordi are in fact admissions against the defendants and in favour of the plaintiffs that they and not the defendants are the owners of the land in dispute. Similarly, I am satisfied that the omissions in defendants’ plans made for this case Exhibits D and E when compared with the insertions in Exhibits F and G also made for the defendants by late C.C. Emordi for another case but in respect of part of the land in dispute, were purely deliberate on the part of the defendants and in my view designed to confuse the court.” (The words in brackets are mine).

Finally, on the issue of trespass the learned trial Judge, having found the appellants have been in occupation of the land initially as caretakers through Ogudebe Agba, concluded that the conduct of the appellants by their turning round recently to claim the land as their own amounted to trespass since such claim was in excess of their original right of entry as caretakers. He relied on Hillen & Pettigrew v. I. C. I. (Alkali) Ltd. (1936) AC 65 and Francis Banigo v. Johnson Banigo & Ors. 8 WACA 148.

Accordingly, he granted declaration of title to the respondents. He restrained the appellants from further interference with the land in dispute and awarded N100 to the respondents against the appellants as damages for trespass.

Dissatisfied with the judgment of the High Court, the appellants appealed to the Federal Court of Appeal which dismissed the appeal and affirmed the judgment of the Onitsha High Court. The appellants have now further appealed to this court on seven grounds of appeal.