Chief Stephen Nwankwo Okonkwo & Anor V. Dr. Patrick Ikechukwu Okolo (1988)

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G. KARIBI-WHYTE, J.S.C. 

This appeal is against the judgment of the Court of Appeal Division sitting at Enugu. On the 23rd January, 1985, the appeal by the Defendants against the judgment of Awogu J (as he then was) of the High Court of Anambra State sitting at Onitsha was dismissed. The learned Judge had on the 14th April, 1980 granted all the claims by the Plaintiffs against the Defendants, which are as follows –

“1. A declaration of title to that piece and parcel of land known as and forming part of OKPOKO lands, situate and lying on the left hand side at about Mile 3 1/2 on the Onitsha-Owerri Road, in Onitsha, Anambra State, as is more particularly delineated in Plan No.SE/ /76 filed by the Plaintiff in this Suit and therein verged PINK.

2. N1,000 (one thousand naira) damages for trespass on the said land.
3. Injunction restraining the Defendant, his servants and/or agents or anyone of them from interfering with the Plaintiffs ownership and possession of the said land.”

It is necessary to state the facts of this case which have given rise to this litigation. They are not complicated in any sense. I shall however dwell only on the material facts pertinent to the cause of action. I shall refer to the Defendants as Appellants and Plaintiff as Respondent, hereinafter. In 1941 one P.H. Okolo of Ogbeozala Village, Onitsha acquired a piece of land from one Menkiti Ikwuazom, the Okpala of Umuonogbo family of Onitsha, under Onitsha customary law. This family is also known as Umuozoma family of Onitsha.

The parcel of land acquired is part of the Okpoko land. During his lifetime P.H. Okolo took possession of the land acquired and remained in and exercised undisturbed optimum possession and ownership till his death in 1957. Meanwhile Menkiti Ikwuazom also died in 1944. The said P.H. Okolo had three children, of which the Respondent is the oldest male. On the death of the said P.H. Okolo the said land became the property of his family. The said family of P.H. Okolo, like their father, also exercised undisturbed acts of ownership and possession by farming on the land.

‘They have since 1966 surveyed the land and filed the plan of the land as surveyed with the Ministry of Lands and Surveys, Enugu. The family of the late P.H. Okolo have resisted the attempts made by the Appellants and other persons to dispute their title to the land acquired by the late P.H. Okolo. In September, 1975 1st Appellant relying and acting on a purported conveyance from the 2nd Appellant trespassed on the land acquired by the late P .H. Okolo and inherited by the children of P.H. Okolo.

After this trespass was abated by voluntary withdrawal, the 1st Appellant again repeated acts of trespass on or about the 25th day of March, 1976, by driving caterpillar into the land, scraping off top soil, grass and felling trees. 1st Appellant, who is a business man in Onitsha, and claims to have bought the said land from the 2nd Appellant who is the last son of Ikwuazom Menkiti, deceased, from who late P.H. Okolo bought the said land. 1st Appellant has refused to withdraw from the said land despite repeated warnings from the family of the Respondents. On the other hand the Umuonogbo family have acknowledged in writing the title of Respondent to the land. It is the obduracy by the Appellants in denying the title of the Respondents to the land acquired by late P.H. Okolo from Ikwuazom Menkiti, that has resulted in the present action.’ They have since 1966 surveyed the land and filed the plan of the land as surveyed with the Ministry of Lands and Surveys, Enugu.

The family of the late P.H. Okolo have resisted the attempts made by the Appellants and other persons to dispute their title to the land acquired by the late P.H. Okolo. In September, 1975 1st Appellant relying and acting on a purported conveyance from the 2nd Appellant trespassed on the land acquired by the late P .H. Okolo and inherited by the children of P.H. Okolo. After this trespass was abated by voluntary withdrawal, the 1st Appellant again repeated acts of trespass on or about the 25th day of March, 1976, by driving caterpillar into the land, scraping off top soil, grass and felling trees.

1st Appellant, who is a business man in Onitsha, and claims to have bought the said land from the 2nd Appellant who is the last son of Ikwuazom Menkiti, deceased, from who late P.H. Okolo bought the said land. 1st Appellant has refused to withdraw from the said land despite repeated warnings from the family of the Respondents. On the other hand the Umuonogbo family have acknowledged in writing the title of Respondent to the land. It is the obduracy by the Appellants in denying the title of the Respondents to the land acquired by late P.H. Okolo from Ikwuazom Menkiti, that has resulted in the present action.

On the 14th April, 1976 Respondent as Plaintiff caused a writ of summons to be issued against the Defendant claiming as follows:-

“1. A declaration of title to that piece and parcel of land known as and forming part of OKPOKO lands, situate and lying on the left hand side at about Mile 3 1/2 on the Onitsha-Owerri Road, in Onitsha, Anambra State, as is more particularly delineated in plan No. SE//76 filed by the Plaintiff in this Suit and therein verged PINK.

2. Nl,000(one thousand naira) damages for trespass on the said land.
3. Injunction restraining the Defendant, his servants and/or agents or anyone of them from interfering with the Plaintiffs ownership and possession of the said land.

After Respondent/Plaintiff had filed and served his statement of claim on the 1st Appellant, the 2nd Appellant filed a motion asking to be joined as a Defendant to the action. In his supporting affidavit he deposed as follows:-

“1. That I am a member of Menkiti Agba Ozoma family, Onitsha.

2. That I swear to this affidavit on the authority of other members of the said family.
3. That the land in dispute in this case belongs to the members of my family.
4. That I on behalf of my family conveyed the said piece of land to the Defendant in this suit for valuable consideration.
5. That the interest of the members of my family will be affected by the result of this case if I do not join to prosecute the defence of same.
6. That I swear to this affidavit believing all the averments to be true and in support of an application to join as a co-defendant in this suit.”

The case of the Appellants is that Ikwuazom Menkiti never sold the land in dispute to P.H. Okolo. It is their contention that Ikwuazom Menkiti was not a member of Umuonogbo family and was at no time the Okpala of that family. They admit he is a member of Umuozoma family. It is their contention that the land in dispute is the personal property of Ikwuazom Menkiti.