Chief Mene Kenon & Ors V. Chief Albert Tekam & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division delivered on 22nd March, 1994. It involves Suit Nos. PHC/9/70 and PHC/113/72 which were consolidated by the agreement of both parties. The respondents in this appeal were the plaintiffs in Suit No. PHC/9/70 and defendants in Suit No. PHC/113/72. After the consolidation, plaintiffs in suit No. PHC/9/70 became plaintiffs in the consolidated suits while the plaintiffs in Suit No. PHC/113/72 became defendants and they are the appellants in this court. The defendants lost in the High Court and their appeal to the Court of Appeal was unsuccessful hence the present appeal. The respondents as plaintiffs suit No. PHC/9/70 sued the defendants claiming the following reliefs in paragraph 23 of their amended statement of claim as follows:

“(a) A declaration that the plaintiffs are entitled to customary rights of occupancy of adjoining portions of land known as Nomabon, Nwebente and Gboro, situate, lying and being at Barako Village in Bori Local Government Area.

(b) N1,000.00 (One Thousand Naira) as damages for trespass committed by the defendants on the said land between 1969 and 1970.

(c) Perpetual injunction restraining the defendants, their servants and agents from further acts of trespass.”

In Suit No. PHC/113/72 which is a cross-action the plaintiffs who are defendants in the consolidated suits claim as follows in paragraph 9 of their amended statement of claim.

“(i) A declaration that the plaintiffs herein are entitled to the customary right of occupancy over the land in dispute known as ‘NOMABON and GBORO’ situate at Nwebiara Gokana, in Bori Local Government Area which is also the subject matter in Suit No. PHC/9/70.

(ii) N800.00 damages for trespass in that the defendants wrongfully entered upon the said plaintiff’s land which had been and have remained in the firm and peaceful possession of the plaintiffs.

(iii) Perpetual injunction restraining the defendants, their servants and/or agents from committing further acts of trespass on the said land.”

From the facts disclosed in the plaintiffs’ statement of claim and evidence called by them, the founder of Ookana was one Oberesaako. He settled in a place now known as Gioko Village of Gokana. The plaintiffs’ ancestor Gberederakina (otherwise known as Lauko) was one of the fourteen children of Gberesaako the founder of Gioko the oldest village in Gokana followed by Barako. It was Gberederakina who first settled on the land in dispute referred to as Nomabon, Nwebente and part of Gboro and exercised various acts of ownership on the said land including erection of buildings and farming thereon. He (Gberederakina) also brought powerful jujus which he kept in various shrines on the land in dispute. It was part of the plaintiffs’ case that after several generations of their ancestors had used the land in dispute, there was a great drought and they moved to part of Gboro which is the name of their family-head who led them to their new settlement. Their original settlement was called Nomabon (meaning old settlement). That Gboro land was populated with many “KO” trees hence the land was referred to as Barako meaning land of “KO” trees. In or about 1929, the Anglican Mission wanted to establish a primary school and the people of Nwebiara (defendants) wrongly gave them part of the plaintiffs’ land. One Nariyar Dugbor the then head of Barako people got to know about the grant and proceeded to destroy the defendants’ farmlands in retaliation. He was charged and convicted at Kono-Ogoni Native Court for conduct likely to cause a breach of the peace. That even though Dugbor was convicted, the court recognised that the land where the primary school was built belonged to the plaintiffs. The certified copy of the judgment of the native court was admitted in evidence as Exhibit “D” “D1”. In 1948 another dispute arose between the parties over the said primary school and this led to an arbitration award to the effect that the school in question should be known as N.I.P. School, Barako. That the arbitration award was embodied in the Native Court Review No. 206/78 and Appeal No. 226/48 (Exhibit “E”).

It was the case of the plaintiffs that Sanwunwa the ancestor of the defendants originally lived in a village called Kaa. His wife was Monalo, daughter of Karanwa one of the plaintiffs’ ancestors. As a result of an inter communal war between Kaa and Yeghe people resulting in the destruction of the old settlement of Kaa people, the defendants’ ancestor Sanwunwa with his wife Monalo fled to Barako to his father-in-law Ntekaranwa for shelter. At his request, his father- in-law’ granted to him a piece of land verged thick black in the plaintiffs’ survey plan Exhibit “C”. The area granted to him was indicated as “Nwebiara” meaning “behind Biara” from which the defendants village Nwebiara derived its name. For many years the ancestors of both parties lived in peace until 1929 when the defendants’ went outside the area granted to them and purported to grant a portion of the land in dispute to the Anglican Mission as narrated above. As to the immediate cause of the action leading to this appeal, the plaintiffs alleged that in 1969 and 1970, the defendants trespassed on the land in dispute in Nomabon, Nwebente and Gboro by erecting houses and farming thereon.

The defendants’ case is as set out in their amended statement of claim and further amended statement of defence supported by the evidence of seven witnesses filed by them. They admitted that Gberesaako was the founder of Gioko the oldest village in Gokana. They, like the plaintiffs claimed to be descendants of Gberesaako. According to them, their ancestor Gbereyekigbe one of the sons of Gberesaako founded Nomabon and Gbaro which are the two adjoining parcels of land forming the land in dispute. It is the defendants’ case that the plaintiffs ancestors are nomadic native doctors and soothsayers who migrated from Ko to settle in Barako.

Both actions were consolidated and tried by Ichoku, J. (as he then was). He found for the plaintiffs and dismissed the defendants’ cross-action. As I stated earlier, the defendants appealed to the Court of Appeal, Port Harcourt Division and their appeal was dismissed hence the further appeal to this court. Briefs of argument were filed and exchanged by both parties. In their brief of argument, the defendants identified the following seven issues for determination in the appeal:

“(1) Whether the hearing and determination of these actions by EN.N. Ichoku, J. were not prejudiced by the previous decision of same Judge in Suit No. FHC/183/72 between Zorgbini Nanwin v. James Dekoo delivered on 17th August, 1993 which was tendered in this suit by the plaintiffs as Exhibit “A” and therefore amount to a serious violation of section 33(1) of the Constitution of the Federal Republic 1979.