Emeka Osondu & Anor V. Ajama Nduka & Ors (1978)

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SOWEMIMO, J.S.C. 

The plaintiffs, who are appellants, in this appeal sued the defendants, the respondents, in Suit O/115/61, at the Anambra State High Court, sitting at Onitsha and claimed:-

“A declaration of title to all that piece or parcel of land known and called Odo Ubiri (or Okpobiri) situate at Nando.”

In the pleadings, there is no dispute that one Ikenga had three children – Agbudu, Umuawo, and Abube and on the death of Ikenga the three children shared amongst themselves the landed property left by their father. The parties do not agree as to the respective boundaries of the portion of land, the subject-matter of this suit. There was also some dispute in respect of acts of possession.

It might be apt at this stage to trace the history of this claim. In a previous Suit No. O/32/57 the appellants in this appeal, as plaintiffs, sued the present respondents, as defendants, and the claims were:-

“(a) a declaration that the plaintiff is the owner of the land known and called Odo Ubiri (or Okpobiri) situate at Nando and bounded as in the plan to be hereinafter filed.

(b) 100 Pounds damages for the destruction by the defendants, their agents and/or servants of the boundary pillars on plaintiff’s land.

(c) an injunction restraining the defendants from further committing such acts as are complained in paragraph (b) above.”

At the completion of the hearing at the High Court at Onitsha Reynolds J., gave judgment in favour of the plaintiffs against the defendants. The judgment went on appeal to the Federal Supreme Court and in its judgment in Suit FSC/295/1960 delivered on 30th June 1961, it set aside the judgment of Reynolds J., and made an order of non-suit in respect of the first item of claim where plaintiffs sought declaration of title. Delivering the judgment of the court Taylor, FJ., stated inter alia:-

“In my judgment, the trial Judge erred in granting a declaration of title to the people of Umuawo in respect of an undefined area of land. To that extent the judgment must be set aside….The result is that the appeal against the Umuawo people is allowed and the order I would make is as follows:-

The judgment of the trial Judge is set aside and I would substitute in its place an order of non-suit in respect of the claim for a declaration of title. I would order a non-suit on the claim for a declaration of title in view of the trial Judge’s finding that the larger area edged violet though not claimed in the action, was owned by Umuawo, and the area to which they failed to get a title for failure to prove their western boundary is within it.”

No appeal was lodged against the judgment of the Federal Supreme Court in that case as indicated in this paragraph of the judgment of the Privy Council delivered on 21st July 1964 by Lord Donovan:-

“Though the record in this case indicates that there are three appeals, there are in fact only two and those two are consolidated. The third apparent appeal between Ajama Aduaka & Ors., and Vincent Ekwealor, is not effective. The Plaintiff in that case was successful in the High Court in Eastern Nigeria but unsuccessful in the Federal Supreme Court, and does not appeal to the Board.”

For the purpose of this appeal, as was done in the 1957 suit, the plaintiffs/appellants will be referred to as Umuawo (Umuawu) people and the defendants/respondents as the Abube. Consequent on the order of non-suit, the Umuawo filed a fresh suit at the High Court Onitsha and is O/115/61 on 13th September, 1961, claiming declaration of title to the piece of land known as Odo Ubiri (or Okpobiri) situate at Nando “and bounded as in the plan to be hereinafter filed.” The defendants are the Abube. The case was heard by Kaine, J., and judgment, which is the subject of the present appeal, was delivered on 9th December, 1963 dismissing the claim of Umuawo against the Abube. Against this judgment an appeal was lodged and learned counsel for the Umuawo, Mr. Onyiuke, argued the following five grounds of appeal. These are as follows:-