Augustine Obineche & Ors V. Humphrey Akusobi & Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

O. ADEKEYE, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division delivered on the 8th day of July 2003. The respondents were plaintiffs at the High Court of Imo State, Orlu Judicial Division where they filed a suit for themselves and as representatives of the Umuabor Community of Dikenafai in the Ideato South Local Government Area of Imo State. By an amended Statement of Claim filed on the 16th of July 1996, the respondents as plaintiffs claimed against the defendants now appellants before this court jointly and severally as follows –

(a) A declaration that the defendants are not descendants of Nchoke the founder of the Umuchoke Community of Dikenafai in the Ideato Local Government Area of Imo State and as such that the defendants are not members of the Umuchoke Community aforesaid.

(b) A declaration that all those pieces and parcels of land known as and called “Ala Isiobi Akasobi” “Ala Isiobi Amaechi” and “Ala Mgbola Onyewuchi” form part of larger pieces and parcels of land all lying and situate at Ndiabo Umuchoke Dikenafai in the Ideato Local Government Area of Imo State over which members of the plaintiffs Ndiabo Umuchoke are entitled to customary Right of Occupancy to the exclusion of the defendants.

(c) Injunction perpetually restraining the defendants by themselves, their agents and or by any other person acting for or on their behalf from –

(i) Representing themselves to any person as members of or descendants of the Umuchoke Community of Dikenafai in the Ideato South Local Government Area of Imo State and

(ii) Committing any further act of trespass on or over any part of the said land of the Umuchoke Community of Dikenafai in the Ideato South Local Government Area of Imo State.

(d) A declaration that the defendants have forfeited that customary grant of land for residential purpose made by Ike Alisigwe of the plaintiffs’ Ndiabo Umuchoke to the defendants Anthony Agonsi and Dominic Okwaranyaegbu Ubawuike on the ground that they have challenged the title of their grantor.

The appellants as defendants were sued in a representative capacity for themselves and as representatives of Umuabo Community of Dikenafai in Ideato South Local Government Area of Imo State. They also counterclaimed in a representative capacity.

By their pleadings and evidence, the plaintiffs/respondents gave the description of the lands in dispute as forming part of a larger area of land, lying at Nchabo Umuchoke Dikenafai in the Ideato South Local Government Area of Imo State. The pieces of land are known as “Ala Isiobi Akusobi”, “Ala Isiobi Amaechi” and “Ala Mgbala Onyewuchi”. The plaintiffs/respondents claimed ownership of the land in dispute through a judgment in their favour in the Governor’s Court of Appeal under the Native Courts Ordinance (Cap 142) Section 31 in Enugu on 21st February 1952 in appeal No. 5/1952. This was an appeal against the decision of the Senior District Officer with Residents power (flight Lieutenant O.J.F. Jones Lloyd) an appeal against the decision of the Acting District Officer, Orlu Division, Mr. A.E. Rylands in an appeal in the Northern Isu Native Court in Civil Suit No. 301/47. They pleaded and relied on certified true copies of the said judgment. They tendered plans of the disputed land. The appellants as defendants at the High Court traced their lineage to Abo and hence are known as Umuabo. They claimed to be owners of the land in dispute having settled there from 1890. They however at one stage moved away to Nkahu which is another part of Dikenafai because of the hostility of the people of Umuokuodu. They returned to the land in 1944 and published this fact in the Eastern Nigerian Guardian of 12th of June 1954. As at that time, they discovered that one Felix Akusobi – their blood relation and father of the first respondent had given out part of the land in dispute to other respondents – who are strangers and belong to other kindred in Umuchoke. The defendants/appellants established their ownership of the land in dispute through various acts of possession and occupation until the trespass by the respondents in 1990 and 1991.

In the considered judgment of the trial High Court delivered on the 14th of August 1996, the court found for the defendants/appellants in their counterclaim. The court found amongst other facts that the plaintiffs/respondents did not plead their root of title and even failed to establish it. The traditional history of the plaintiffs/respondents as to their origin was conflicting and contradictory. There is evidence to show that no section of Umuchoke can own land in another section and the claim of the plaintiffs/respondents to communal ownership of land in Umuchoke is not only false but also unfounded. The respondents failed to link themselves to Ibeke Alisigwe. Though the plaintiffs/respondents claimed for declaration and injunction, they failed to prove the extent of the land in dispute, or the extent of the land the defendants/appellants have trespassed upon, or the extent of the land which Ibeke Alisigwe purportedly granted to Dominic Okwaranyaegbu Ubawuike and Anthony and Agonsi. The appellants as defendants had proved undisputed acts of possession over the land in dispute. They proved that they had a relationship with the 1st respondent whose father pledged part of the land which they redeemed. The appellants established acts of trespass on the part of the respondents.

The respondents were dissatisfied by the said judgment and consequently appealed to the Court of Appeal, Port Harcourt Division.

The Court of Appeal allowed the appeal, set aside the judgment of the trial court, dismissed the counter-claim of the appellants at the trial court and entered judgment in favour of the plaintiffs/respondents in terms of their amended statement of Claim before the trial court. The defendants/appellants being aggrieved by the judgment of the Court of Appeal have appealed against the judgment to this Court. The Notice of Appeal filed on the 28th of September 2003 contained seven grounds of appeal. The appellants distilled four issues for determination in their brief filed on 12/2/04 and reply brief deemed filed on 8/3/10 before this court as follows –

‘(1) Was the Court of Appeal correct in holding that the case of the plaintiffs/respondents was predicated on the production of documents Exhibit B- B2 relying on the case of Idundun v. Okumagba (1976) 9-10 SC pg. 227.