Elekw Auwa Anero & Ors V. Eburunobi Eze & Ors (1995)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C.

This is a further appeal by the defendants from the judgment of the Court of Appeal (Enugu Division) where by a majority decision (Phil-Ebosie, J.C.A. and Olatawura, J.C.A. as he then was with Ogundere, J.C.A. (dissenting) the defendants’ appeal from the judgment of the High Court of Rivers State (Allagoa, J., as he then was) was dismissed. The plaintiffs’ representing the Umualika family of Umueze-Umuogba, Etche in Ahaoda Division, had in an action instituted in 1971 sued the defendants as representing the Umukikpe family of Umueze-Umuaogba claiming as per. Paragraph 9 of their statement of claim:-

“(a) Declaration of title to the said piece of land known as and called ‘Ama-Ogwugwu’ .

(b) 200 (Two hundred pounds) (N400.00) damages for trespass.

(c) An order of injunction permanently to restrain the defendants, their servant and agent from further acts of trespass into the land aforesaid. ”

Pleadings having been filed and exchanged, the action proceeded to trial at the end of which, after addresses by learned counsel for the parties, the learned trial Judge, in a considered judgment, found the plaintiffs’ case proved and entered judgment in their favour in terms of all their claims.

The facts simply are: The parties descended from a common ancestor called Ozeh who owned a large tract of land. This grand ancestor had four sons, namely, Isiahia, Alika, Egwu and Ikpe. Alika was the ancestor of the plaintiffs through whom they claimed the land in dispute. Ikpe was the ancestor of the defendants through whom they claimed the said land. Ozeh, in his life time, divided his land among his four sons. The families of these sons had remained in possession of the portion given to their respective ancestors. Each party claimed the land in dispute as being part of the land Ozeh allocated to its respective ancestor. Each also claimed to be in possession and to exercise rights of ownership on the land. Both parties claimed to have granted portions of the land to one B.W. Anyamele to erect a store and to the Anglican Mission (St. Mark’s Church Umuogba). Plaintiffs also claimed, and led evidence in support, that one Johnson Egbe and Niebedim Ejimapa, 5th defendant’s relatives were their tenants on part of the land. 5th defendant did not testify to deny this assertion.

All the boundary men testified in favour of the plaintiffs. Similarly, Anyamele gave evidence to the effect that it was the plaintiffs, and not the defendants, that gave him the land on which he built his store.

The learned trial Judge found:-

“On the evidence therefore before me I find that the land in dispute is as testified by the plaintiffs and their witnesses Ama-Ogwugwu verged pink on the plan of the plaintiffs and that defendants have no land called Okwuhi shown on their plan Exhibit ‘D’.

On the next question who is the landlord of B.W. Anyamele and the Anglican Mission which notwithstanding my finding as to the ownership of the land Ama-Ogwugu I propose to deal with separately, the defendants have categorically averred that they put Mr. B.W. Anyameleon the land.

Mr. Anyamele was called by the plaintiffs. He produced an agreement dated 15th May, 1967 made between him as tenant and plaintiffs’ family as landlord for the letting of a portion of Land near one market. I had to reject the document since it was not registered under the Land Regulation Law (sic) The witness however gave oral testimony acknowledging the plaintiff as his landlord within the area in dispute to the North. In spite of defendants averment it was not suggested to him that he was the tenant of the defendants. Also as to the tenancy of the Anglican Mission on the area verged green although the defendants in paragraph 7 of the Statement of Defence pleaded they are the landlords, they did not indicate on the plan where the site of this Church is located. 3rd defendant under cross-examination admitted he did not take the surveyor to the area because it was bushy and because he did not traverse the whole of the new road with the surveyor. To say that he did not take the surveyor to this road is false because further on along that road is the area, verged yellow which is indicated on Exhibit ‘D’ as the area defendants gave the plaintiffs to live. It was the plaintiffs who called Rev. Archdeacon Chukwuigwe who identified Exhibits ‘A’ and ‘B’ concerning the letting and surrender of the holding by the Anglican Mission on the land in dispute. Although, it was suggested that the land in question belonged to the whole of Umueze the evidence of Paul Dick makes it clear that it was plaintiffs’ head of the family Ommeh who gave the lands to B.W. Anyamele and Anglican Mission. I believe has (sic) testimony (which if not true would be against the interest of Isiahia family) that if the land given to the Mission belonged communally to Umueze that the family of Isiahia which is the head in the affairs of Umueze would have also signed the agreement. I therefore find that the tenant B.W. Anyamele who still resides on the land in dispute is the tenant of the plaintiffs and “that it was plaintiffs not the defendants who put the Anglican Mission on the land.”

He also found:-

“On the last question of acts of ownership on the land in dispute. I have to observe that although the plaintiff averred and called witnesses in support of their case that the defendants were given the area verged yellow and in particular the 5th defendant was given an adjoining area indicated on Exhibit ‘C’ where he had erected a building on the strength of a written agreement dated 15th May, 1967; the 5th defendant was not called to deny this fact. Although for technical reasons I did not admit this agreement I am satisfied from the evidence of Paul Dick and Egonu Nwokoba that it was the plaintiffs who gave the yellow portion and the area which 4th and 5th defendants now reside to them and reject the defendants unsupported evidence that they gave plaintiffs some portions of their land. The admission of 3rd defendant that as against three portions of land the plaintiffs have five pieces, makes the suggestion less probable.”