Ebenezer Nwokoro & Ors. V. Titus Onuma & Ors. (1999)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C

The plaintiffs (now respondents) are the people of Ndiorji village, one of the eight villages of Ugirike Ikeduru in Owerri, The defendants (now appellants) are of Umuezem and Umumgbeke, two of the said eight villages. The respondents lay claim to a parcel of land known as ORIE OFOR, now in dispute, which they allege is part of their larger parcel of land called Ala Ndiorji as depicted in their litigation plan No.UND/48/71A (exhibit A). For reasons to be given later, they brought this suit against the appellants for (1) a declaration of title to the said Orie Ofor (2) N200.00 damages for trespass and (3) perpetual injunction.

On 10 July, 1979, the Owerri High Court of Imo State presided over by Ogwuegbu J, gave judgment for the respondents in respect of the three reliefs but limited the extent and effect of the first and third reliefs. He made further orders which were not asked for and were not really consequential or incidental to the reliefs claimed, The judgment awarded relief (1) as follows: The plaintiffs are entitled to the customary right of occupancy of that parcel of land verged yellow in exhibit “A’ tendered by the plaintiffs subject to the right of possession by the defendants of that area of it already cultivated by the said defendants with oil palm trees” As to relief (3), it was “The defendants, their agents and servants are hereby restrained from further trespass to any portion of Orie Ofor land verged yellow in exhibit “A” not yet cultivated with oil palm trees by the defendants.” (Emphasis indicates the limitation on the reliefs sought).

Both parties appealed. The plaintiffs against the limitation placed on the first and third reliefs and also as regards the order”, made suo motu; the defendants against the judgment as a whole together with the orders made. On 28 February, 1994 the Court of Appeal, Port Harcourt Division, dismissed the defendants’ appeal and allowed the plaintiffs’ appeal, making the following orders: “1. The plaintiffs are entitled to the customary right of occupancy of the entire parcel of land verged yellow in exhibit ‘A’ tendered by the plaintiffs. 2. The defendants, their agents and servant are hereby restrained from further trespass on any portion of Orie Ofor land verged yellow in exhibit -A-. The award of N200.00 damages was not disturbed.

Let me briefly state the facts of this case at this stage. The plaintiffs and defendants belong to Ugirike in Owerri. The plaintiffs claim that the defendants’ villages of Umumgbeke and Umuezem have no access to the stream known as Omuyi Opara Ojimadu which runs through five (including the plaintiffs’ Ndiorji village) of the eight villages which comprise Ugirike. The said river provides swampy land along the said live villages. The land in dispute called Orie Ofor is situate in the plaintiffs’ Ndiorji village.

Sometime in 1967, the Government of the then Eastern Region of Nigeria proposed to the five riparian villages to cultivate rice in the swamp, which rice the Government would provide. The Ndiorji village accepted the proposal but the other four rejected it. The plaintiffs’ village being of a small population agreed that the defendants Umumgbeke and Umuezem villages and also the village known as Umuiamadi should join in the project. The rice harvest was poor. The defendants then suggested the planting of palm seedlings in place of rice. The plaintiffs agreed on condition that they were given some concession or were paid compensation since palm trees are permanent economic crops to which they would lose any other use of their land for a long time. The defendants turned this down. The plaintiffs therefore backed out of any further joint project and said they were taking over their land for the usual cultivation to which it had been put.

The defendants reacted by forcibly occupying the land and planting oil palm seedlings thereon. The plaintiffs protested to the authorities who then warned both parties to keep off the land until after the civil war. After the civil war the defendants went on the land and cut down a number of economic crops, including palm trees and two uhii trees.

The defendants on the other hand claimed that the stream earlier mentioned runs through all eight villages. They said the joint venture to cultivate rice was begun in 1966 through a cooperative society formed for that purpose. The plaintiffs were asked to surrender their own land known as Oru Fine but they refused and backed out of the project. The defendants then formed their own cooperative society and started to plant oil palm seedlings on the land in dispute which they say is their own.

The learned trial Judge made the following findings:
(a) that the two villages of the defendants and also Umuamadi village are upland villages with no water front; (b) that a rice project was what was originally agreed; (c) that the plaintiffs pulled out of any joint venture to plant oil palm seedlings when their demand for compensation for their land they would surrender for this purpose was turned down by the defendants; (d) that the Umuamadi village also pulled out; (f) that after harvesting the rice, the presence of the defendants on the land in dispute was without the consent of the plaintiffs; (g) that the evidence led by the defendants was at variance with the material averments in their amended statement of defence; and (h) that the plaintiffs proved exclusive possession of the land in dispute. The learned trial Judge also specifically found that the plaintiffs proved acts of trespass committed by the defendants on the land through the planting of oil palm trees on the land in dispute without the consent of the plaintiffs. The Court of Appeal judgment was rejected by the defendants.

They have now appealed against the judgment. They filed an amended notice of appeal containing five grounds.

The first ground is that there was conflict between the evidence of p.w.1, p.w.2 and p.w.3 on the issue of cultivation by the parties of oil palm trees on the land in dispute and that the court below failed to note this. The second ground which appears to arise directly from the first is that the court below was in error when it held that the plaintiffs did not cultivate oil palm before or during the civil war. It seems to me therefore that if there was indeed no material contradiction in the evidence of p.w. 1, p.w.2 and p.w.3, the complaints in the said two grounds would not be sustained.

The third ground of appeal states: ‘The court below erred in law and came to wrong conclusion on the facts in failing to observe that the plaintiffs did not prove the acts of trespass as pleaded in their amended statement of claim.” No particulars of error were supplied. This ground is therefore incompetent. The issue set down for determination in respect thereof [issue (1)] and the argument proffered ought to be discountenanced: see Osinupebi v. Saibu (1982) 7 S.C. 104 at 110-111; Oguntade v. Adeleye (1992) 8 NWLR (Pt.260) 409 at419 – 420; Cross River State Newspapers Corpn. v. Oni (1995) 1 NWLR (Pt.371) 270 at 284 – 285.

The fourth ground of appeal reads: ‘The court below erred in law in holding that the defendants did not deny paragraph 13 of the amended statement of claim and that section 45 of the Evidence Act was correctly applied.” Two matters are involved in this ground. namely (a) whether para. 13 of the amended statement of claim was sufficiently denied and (b) whether s.45 of the Evidence Act was correctly applied. I shall endeavour to resolve them separately.

The fifth ground of appeal is that the court below failed to properly evaluate the evidence before the trial court and thereby came to wrong conclusions in relation to the cultivation of palm trees and rice on the land in dispute by all parties concerned namely, the plaintiffs, the defendants and the Umuamadi village. This ground seems to have some bearing with the first and second grounds of appeal as well as to raise the issue of concurrent findings.