Daniel Dibiamaka & Ors. V. Prince O. Osakwe & Ors. (1989)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C. 

This was a three-cornered fight between the plaintiffs who sued for themselves and on behalf of and as representing the people of Umuonai Quarters of Akwukwu. The original named plaintiffs were Crawford K. Anyekonwu, Michael Onyekwena and Daniel Dibiamaka.

With the deaths of the 1st and 2nd named plaintiffs an application for their substitution was made. The result is the present named plaintiffs. There were also similar necessary consequential substitutions among the ranks of the defendants resulting in the present named defendants.

Originally two suits were filed in the Asaba Judicial Division of the Bendel State High Court, namely, Suits No. A/81/67 and No. A/18/71. By an order of the trial High Court made on the 16th November, 1973, these two suits were consolidated as follows:-

The plaintiffs in Suit No. A/18/67 became the plaintiffs in the consolidated action while the plaintiffs in A/18/71 became the 1st Set of defendants and the defendants in the older Suit No. 1/18/67 became the 2nd Set of defendants.

With the creation of the Ogwashi-Uku Judicial Division carved out of the old Asaba Judicial Division, the two consolidated suits were transferred thereto and re-numbered O/28/75 and O/29/75.

The Claim of the plaintiffs against the two sets of defendants was for:

i) A Declaration of Title to a piece and parcel of land situate in Umuonai Village Akwukwu known as and called “Mbugudu Azuiyi” land.

(ii) 400 Pounds damages for trespass upon the said land by entering the said land 2 years ago and destroying vegetation and economic crops and taking gravel thereof.

(iii) Perpetual Injunction restraining the defendants by themselves, servants or agents or otherwise from continuing or repeating the said wrongful claim.

The 1st set of defendants as plaintiffs in A/18/71 claimed in their own action against the plaintiffs in A/18/67 as follows:-

1. Declaration of title to the piece and parcel of land known and called Mgbadudu-Azuno.
2. Injunction restraining the defendants, their agents and assigns etc. From further trespass.
3. Forfeiture of customary tenancy for having asserted ownership and for other acts within mentioned.
4. N500 for trespass in that as from the end of 1969 December the defendants continued to hold over after the plaintiffs have given them (defendants) 2 (two) years notices to quit and remove the agricultural crops. They further broke into the land in 1970 and farmed thereon.

Pleadings were ordered, filed and duly exchanged. After due trial on relevant evidence, Moje Bare, J., made the following significant and far-reaching findings of fact:-

“1. Looking at the two plans Exhibits A and B and considering the evidence before me, particularly that of the defendants” surveyor, D.W.1. I am satisfied that the parties refer to the same parcel of land hatched PINK in the two plans -(see p.117 of the record of proceedings).

2. It is submitted that trespass and forfeiture for breach of customary tenancy are two different causes of action. In my view, they claimed for trespass and so the 1st and 2nd defendants are not entitled to add to their Statement of Claim a new cause of action different from the one mentioned in their writ without amending the writ – (see p.129 of the record of proceedings).
3. I must say right away that the evidence of traditional history adduced by the Plaintiffs as to how their ancestors came upon the land in dispute has been most unconvincing; the evidence as to acts of possession is not exclusive in that the plaintiff testified that in the past, farmers from Ukumaga Illah, Ogbe-Obi and Umuonai crossed their respective boundaries freely to farm and without quarrel- (see pp.131/132 of the record).
4. I reject EX.A and the evidence of the plaintiffs that a parcel of land immediately adjoining the land in dispute to the South and South-West is the land of Umuonai and I find as a fact that plaintiffs’ quarter lies beyond to the South and West of Olie Market. I accept EX.B and the evidence of 1st and 2nd defendants and their witnesses that the parcel of land adjoining the land in dispute on the South is the land of 1st and 2nd defendants and that the parcel of land east of the land in dispute belongs to 1st defendant’s quarter. I also accept the evidence of the 4th defendant … that it was the 1st and 2nd defendants who put them on the land now known as Aninwaelo. I also believe the unchallenged evidence of 3rd and 5th defendants that they no longer pay tributes in respect of their user of the land in dispute (see p.133 of the record).
5. I believe and find as a fact that 3rd to 5th defendants have been on the land for upwards of 70 years and that they have established farms and settlements thereon without let or hindrance from the plaintiffs. I find as a fact that 3rd to 5th defendants were no trespassers on the land in dispute at the material time of this action (see p.133 of the record).
6. Suit 98/29 fought by Crawford Kachikwu & 2 ors. for and on behalf of Umuonai quarters and Prince O. Osakwe & 4 ors. Representing Aninwaelo town near Akwukwu tendered as Ex.C appears to have concluded the issue of the rights of Aninwaelo people over the land in dispute between the plaintiffs and 1st and 2nd defendants on the one side and the 3rd to 5th defendants on the other side (see p.133 lines 23-25).
7. I believe and find as a fact that the 1st and 2nd defendants are in possession of the land surrounding the land in dispute with the exception of Ukala-Okpuno and Ukumaga Illah. (see p.134 lines 26 to 32).
8. I accept as more plausible the traditional evidence of the 1st and 2nd defendants in respect of their ownership of the land in dispute.

In view of all the findings made above, the learned trial Judge then held at p.135 lines 1-9:-