Chief Nicholas Nwachukwu & Ors. V. Mr. Nwagbara Dimgba & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

EJEMBI EKO, J.C.A.

This is an appeal against the decision of Abia State High Court sitting at Obehie delivered on 30th March, 2006. The learned trial judge dismissed the claim of the Appellants, as Plaintiffs, and gave judgment to the respondents, as defendants, in their counter-claim.

The Appellants, as plaintiffs, had sought the following reliefs against the Respondents in their amended statement of claim. That is-

1. A declaration that the plaintiffs are jointly entitled, with the defendants, to the ownership, use and occupation of the parcel of land known as and called “EGBELU ETITI” situate at Obehie Asa in the Ukwa West L.G.A. of Abia State.
2. An order of perpetual injunction restraining the defendants by themselves, their privies, successors in title, agents or servants from over disturbing or in any manner whatsoever interfering with the plaintiffs, right to joint ownership, possession, use and occupation of the said “EGBELU ETITI” land with the defendants.

The 1st and 2nd sets of defendants/respondents filed a joint statement of defence wherein they set up a counter claim, claiming three reliefs, namely –

a. A declaration that the defendants are persons exclusively entitled to the customary ownership, use and occupation of ALL THAT parcel of land known as and called EGBELU UMUIBE & UMUADA including the EGBELU ETITI situate at Obehie-Asa in Ukwa West Local Government Area of Abia State.

b. A declaration that Umuada village of Obehie Asa in Ukwa West Local Government Area of Abia State, the 2nd set of Defendants hereof, is in the exclusive possession and use of that part of “EGBELU-UMUIBE & UMUADA” land known as and called “UKWU – UDA” situate at Obehie Asa in Ukwa West Local Government area within jurisdiction.

c. An injunction restraining the plaintiffs, their servants and/or agents from interfering with the rights of the defendants or claiming interest whatsoever over that parcel of land known as “EGBELU UMUIBE & UMUADA” or any part thereof including “EGBELU ETITI” and “UMUADA” lands situate at Obehie Asa in Ukwa West Local Government Area of Abia State within jurisdiction.

The two parcels of land being claimed by the parties are EGBELU ETITI land, and UMU-UDA land. In respect of EGBELU ETITI land the parties are ad idem that the parcel of land is in dispute. They all agreed in their respective pleadings that EGBELU ETITI land is a part of a larger tract of land called EGBELU, and that EGBELU ETITI is a communal land. The Appellants, as plaintiffs, averred that EGBELU ETITI had, from time immemorial, been jointly owned, used and cultivated by all the parties. The Respondents, on their part, assert that EGBELU ETITI “is the communal land of the defendants.”

The parties know the disputed EGBELU ETITI Land. The PW.1’s description of the land at page 92 lines 28 – 32 was not challenged or controverted. That is –

On the north, the land is bounded by the land of the Plaintiffs not in dispute; on the bottom (south) the land of Umudobia [not in dispute]; on the right [East] is bounded by “Ukwu Uda”; and the left (West) is the land of the 1st set of defendants [Umuibe] not in dispute.

The identity of land can only be an issue where the parties either in their pleadings, or cross-examination, or evidence raise it. See ALABI v. OLOYA [2001] 6 NWLR [pt.708] 37; OSAZUWA v. ISIBOR [2004] 3 NWLR [Pt.859] 16. The identity of EGBELU ETITI is not an issue in this appeal.

As regards UKWU UDA Land the defendants/respondents acknowledge in their statement of defence that until the year 2000 ” the plaintiffs and the 2nd set of defendants continued to farm the land UKWU UDA jointly, and that the plaintiffs and the 2nd set of defendants were known and called UMUADA village by Obehie town people”. The dispute over UKWU UDA land started with a dispute over the appointment of Linus Nwachukwu (the second of the 2nd set of defendants) as village head of Umuada village. In 2002 the Appellants, wanting to be identified with their ancestor Nwala by affidavit and newspaper publication (vide Exhibits C and D) changed the name of their portion of Umuada village to Umuala. The change of name was regarded by the defendants as an act of secession by the Plaintiffs. In the amended statement of claim the plaintiffs/Appellants aver that in the year 2002 the respondents decided to exclude them from the joint ownership of the lands they jointly own with the Respondents. That is the immediate cause of action.

Still in respect of UKWU UDA Land, the defendants/Respondents in their joint statement of defence and counter claim aver –

(xxvii). The defendants state that the 3rd plaintiff and his Obimala Obehie Town Council were looking into the complaint of the plaintiffs, the same plaintiffs summoned the 2nd set of defendants before “Agu-Lorre” juju in Ogoni, Rivers State, demanding the 2nd set of defendants to take an oath before the said juju that the 2nd set of defendants and not the plaintiffs are the head of Umuada village and consequently the legitimate owners of lands belonging to the village…..