Benedict Agwunedu & Ors. V. Christopher Onwumere (1994)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.S.C.

In a representative action, instituted and filed in the High Court of East Central State of Nigeria, (now Imo State) the respondent, in the appeal, claimed against the appellant as follows:

“1. Declaration of title to that piece or parcel of land known as and called ‘Ala EMENAUGHA’ situate at Unuoke Owerre Nkwoji in Nkwerre Division within the Orlu Judicial Division and more particularly shown and delineated on the plan No. E/GA834/76 verged pink and filed with the statement of claim with the annual value of N10.00 (ten naira).

2. N2,000.00 (two thousand naira) general damages for trespass into plaintiff’s Ala Emenaugha.
3. Perpetual injunction to restrain the defendants servants/agents from further acts of trespass to the said land.”

Pleadings were called, filed and duly exchanged. Mr. Christopher Onwumere gave facts of his claim against the appellants, in his evidence in chief, before the trial High Court. He told the court that he and his ancestors have been owners in possession of the land in dispute from time immemorial. I may pause here to explain that there is no dispute between the parties over the identity of the entire land which is the subject of this litigation. The two survey plans, Exhibit A and B, D which were respectively produced by the respondents and the appellants agree on all essential details. The parties only differ in the names which each party described the land in dispute. The appellant gave the name of the land as “Ala Emenaugha”.

The respondent told the court that the land in dispute is situate in Umuoke Owerre Nkwoji, in Nkwerre/Isu Local Government Area. He called six witnesses to prove his claim. The appellants, who were defendants at the trial High Court, claimed that the land in dispute was founded by Dii their ancestors from whom they derived their name- Umudi meaning the children of Dii. They called the land in dispute “Ohia Ajimiri” meaning bush reserved for Ajimiri juju. The appellants claimed both the ownership of the land and the Ajimiri juju which was worshipped by all the neighbouring people in the area. It is their case that only people of Umudi descendant could become chief priest of the juju. They explained further, that in the olden days fugitive offenders who ran to and surrendered to Ajimiri juju were sacrificed to the juju and thereafter they became “Osu-free servants” of the juju and automatically were freed from punishment. Obinike village, near Eke market, was set aside for the settlement of such juju servants. Hence the occupation of the respondents’ people of Obineke village.

Seven witnesses testified for the defence and, in a well considered judgment, the learned trial judge, Johnson J., found that the respondent had failed to prove his claim and it was accordingly dismissed. On appeal, the Court of Appeal, Enugu Division, allowed the appeal and, in an apparent contradiction, the court of appeal declared that the respondent was entitled to both customary and statutory right of occupancy over the land. Dissatisfied with that decision the defendant filed this appeal and supported it with seven grounds of appeal. Chief Williams, SAN. formulated four issues for the determination of this appeal on behalf of the appellants. Those issues are as follows:

“(i) Whether the court below was correct in holding that ……”

(a) the defendant did not deny the plaintiff’s allegation that the land on which he now resides was one time pledged to one Mbahaotu of the defendants’ people;

(b) the defendant cannot rely on Exhibit in support of transaction of sale.

(ii) Whether the trial court was precluded from accepting the evidence relating to sale of the aforementioned and;

(iii) Whether the conclusions drawn by the court below from the areas within the dispute which are said to be occupied by the plaintiff’s family are reasonable.

(iv) Whether the orders made by the court in favour of the plaintiff can be justified.”

Chief A.O. Mogboh, SAN., gave a brief outline facts of the case of the plaintiff/respondent and pointed out that the appellants, as defendants, made far reaching admissions about the respondents’ long possession of undefined portions of the land in dispute. The learned Senior Advocate submitted that the learned trial judge failed to consider the effect of appellants’ admissions which supported the respondent’s claim to exclusive possession. However, the Court of Appeal found that the appellants admitted that the respondent and his people are in possession of the areas verged violet, pink and blue, in Exhibit B, and that as persons in actual possession of the land in dispute, the respondent’s family are the persons entitled to the customary right of occupancy of the disputed land. The learned Senior Advocate, in the respondent’s brief, submitted that the following issues arise for the determination of this appeal:-

“1. Whether by considering Exhibit ‘C’ as evidence of sale without the consent and concurrence of members of the family, the trial court was not thereby formulating a fresh issue for the parties distinct from their pleadings of pledge.