Duruaku Eke V Udeozor Okwaranyia (2001)

LAWGLOBAL HUB Lead Judgment Report

UWAIFO, J.S.C. 

This appeal is from a judgment of the Court of Appeal, Port Harcourt Division delivered on 28 June, 1995. The case originated in the High Court of Imo State holden at Orlu. It is in respect of a land dispute between two families: namely, Umuokwaraku family (as plaintiffs) and Umuduruohome family (as defendants). The plaintiffs call the land Ohia Ibekwe. The defendants however say that two parcels of land are involved which they call Ala Ohia Ibekwe and a portion of Ala Oforo. On 21 October, 1985, the plaintiffs took out a writ of summons to commence this action. The reliefs eventually sought in the statement of claim were for:

“(a) Declaration that the plaintiffs are entitled to the Customary or Statutory Rights of Occupancy to the said Ohia Ibekwe land in dispute shown in plaintiffs’ Plan No. DS4305/1M2291/85 filed with this statement of claim and of an annual value of about N10 (Ten Naira).

(b) N1,000 (one thousand Naira) as general damages for trespass.

(c) Perpetual injunction to restrain the defendants and members of their Umuduruohome family, by themselves or by their agents and privies from further trespass on the said land and from further acting in violation of the plaintiffs’ rights to their said land.”

The plaintiffs’ case is that Ohia Ibekwe land was originally a juju forest which housed the Ibekwe rain juju. Part of the forest was cleared by the first known chief rain-making juju priest of the plaintiffs’ family. The traditional founder of Ohia Ibekwe forest land was one Okwaraku. He performed maximum acts of ownership and possession thereon by way of farming the land and ministering onto the said rain juju. On his death, his three sons, namely, Iheakongaonome, Nwaire and Ewuzie succeeded to all his lands including Ohia Ibekwe juju forest land. Iheakongaonome became the chief priest of Ibekwe juju and took charge of the juju forest. On the death of Iheakongaonome, his eldest son Okwaranyekwere succeeded him. He was himself succeeded by his eldest son Chigbue and then Dike the eldest son of Chigbue; and then Okwaebuzie the eldest son of Dike; followed by Okwaranyia the eldest son of Okwaebuzie; and finally by the 1st plaintiff the eldest son of Okwaranyia.

The plaintiffs gave three instances in which they permitted members of the defendants’ family to build on the land in dispute. First, that sometime in 1952, one Mazi Ezete Eke along with his relations from the defendants’ family approached the plaintiffs’ family with customary wine to give land to his son Francis to establish a compound. The plaintiffs obliged. Second, that one Mazi Obiala of defendants’ family was allowed an area of land adjoining the land in dispute by the plaintiffs’ family to build his compound. Third, that one Mrs. Duruihesie of the defendants’ family who, although her mother hailed from the plaintiffs’ family, was permitted by the plaintiffs’ family to erect a store partly on a portion of plaintiffs’ land sharing common boundary with the defendants’ family land. The defendants on their part, while denying the plaintiffs’ side of the case, admitted that the forest has always been a juju forest housing a juju they also call Ibekwe. They claim, as already said, that two pieces of land are in dispute, namely, one called Ala Ohia Ibekwe and a portion of another called Ala Oforo. They say that the said pieces of land were founded by their ancestor Okohia (founder of Okohia village). They trace the genealogy and the way the land devolved as follows: Okohia begat Duruoleme, Ofeke (defendants’ ancestor), Elekuba (plaintiffs’ ancestor), Nnakwe and Durunokwara in that order of seniority. Ofeke inherited the land on the death of Okohia. He begat Okwaraozumba, Durugbo, Okoroezonwanokwutere, Duruonome (the defendants’ forefather) and Duruaro. The defendants who are the descendants of Duruonome are known as and called Umuduruohome. Duruohome inherited the land in dispute. He begat Duruoha, Ubawugo and Okolie, all three of whom are the direct progenitors of the defendants and those they represent in this suit. The defendants’ case further shows that members of their family live on the land and carry on all manner of farming but that the plaintiffs do not live on any part of the land. In addition, the defendants’ family members have exploited Indian bamboo and felled economic trees on the land over the years. Also, the chief priesthood of the Ibekwe juju has remained in the Duruohome family descending to the lineage of his first son while the second son’s lineage is the rain-maker. The defendants also pleaded and gave evidence that there was arbitration in respect of a dispute over a portion of Ala Ohia Ibekwe which was in their favour. Finally, they pleaded the ancient trench (Nkoro) as the common boundary between the parties and gave evidence accordingly. It is important to mention that the plaintiffs clearly acknowledge in their pleading and evidence the existence of the said ancient trench. Indeed, PW1 Romanus Ezimoha, although denying that the trench forms the boundary between them and the defendants, admitted in evidence that sometimes an ancient trench could form the boundary between communities or families.

Thus, from the pleadings and evidence, essentially, the root of title put forward by each party was based on traditional history as to the founding and devolution of the land in dispute. The learned trial Judge (Ononuju, J) proceeded to consider the case by examining the traditional histories of both parties. He held the view that they were inconclusive. He then considered recent acts of ownership. This was obviously on the principle laid down in Kojo v. Bonsie (1957) 1 WLR 1223. On the facts available he made the following observation:-

“On acts of ownership and possession there are (sic) abundant evidence in support. It is agreed on all sides that the defendants live on parts of the land in dispute. On three sides they share common boundary with other people. They live almost round the land in dispute-Some of the defendants’ people who lived on the land in dispute and died there were buried there without any permission from the plaintiffs.”

Next, the learned trial Judge touched on the assertion by the plaintiffs that they permitted some of the defendants’ people to build on the land and live there. He said:-

“On the question of allowing the defendants’ people to live on the land in dispute, plaintiffs were unable to show the manner in which the portions of the land in dispute were allowed to the defendants’ people to live. Is it outright grant, pledge or temporary grant. What were the conditions of the grant, the plaintiffs did not say.”

The learned trial Judge later concluded:-

“I am not satisfied with the evidence of the plaintiffs that they allowed the people of the defendants to live on Ohia Ibekwe land and Ala Oforo. The plaintiffs have not explained to the satisfaction of the court why they do not live on Ohia Ibekwe and Ala Oforo but allowed the defendants’ people to live there.”

As to what separates the plaintiffs’ land from the defendants’ land, the learned trial Judge had this to say by reference to the survey plan, exhibit A:-