Ezemonye Okwara V. Dominic Okwara & Anor. (1997)

LawGlobal-Hub Lead Judgment Report

ONALAJ A, J.C.A

Plaintiff now appellant in this appeal commenced the action in a representative capacity with the leave of the High Court of Imo State holden at Orlu Judicial Division Orlu for himself and on behalf of the other members of Okwara Family of Umueze Abukwa Umuobom against the defendants in a representative capacity for themselves and on behalf of the other members of Okwara Family of Durueze Abukwa Umuobom. The defendants are hereinafter referred to in this judgment as the respondents.

The claims of the appellants are discernable in paragraph 30 of the amended statement of claim at page 106 of the record of appeal. This paragraph is adopted following the rule of law that in our civil jurisprudence a statement of claim supersedes the particulars of the writ of summons especially that the averments in the statement of claim must not be in conflict or contradict the particulars of claim endorsed in the writ of summons. Paragraph 30 aforesaid states as follows:-

“30 Wherefor the plaintiff claims jointly and severally against the defendants as follows:-

(a) A declaration that plaintiff and members of his family are entitled to the customary right of occupancy covering Ala Duruigbo in dispute situate at Umueze Abukwa Umuobom shown in plaintiffs plan No. DS/9357/IM 1847D/87 verged green (except the portion verged black) being of an annual value of N20.00 (Twenty Naira).

(b) N2000.00 general damages for trespass.

(c) A perpetual injunction restraining the defendants themselves, their servants, agents and privies from further trespassing on the portion of the said Ala Duruigbo verged green excepting the portion verged black in the said plaintiffs plan.”

After service, respondents filed their statement of defence which was also amended with the leave of court.

To substantiate his claim appellant called nine witnesses. A summary of the testimonies of appellant’s witnesses are at page 165 of the record of appeal being part of the judgment of Hon. Justice G.O. Oyudo delivered on 7th day of January, 1994 which judgment covers pages 163 to 172 of the record of appeal.

Respondents on their part called 7 witnesses. The summary of their testimonies are at pages 166 and 168. The survey plan of the appellants was admitted as Exhibit C. The parties joined issues as to the identity of the land in their pleadings. From the pleadings and testimonies of the parties the learned trial Judge on the importance of the identity of the land in an action for right of occupancy at pages 167 and 168 of the record of appeal stated thus:-

“First on the location of the land in dispute according to the evidence accepted by both parties, there are four villages in Abukwa namely, Eluama, Umueze, Uhuizi and Umuobasi. The plaintiff is from Umueze while the defendants are from Eluama. Each party has contended that the land in dispute is situate in its territory. Their survey plans Exhibits “B” and “C” respectively attempted to depict the location of the land. The big question is “which of the two plan exhibits correctly depicts the land in dispute as being in Eluama or Umueze?…. at page 168……

I have taken a close look at the two plan Exhibits “B” and “C”. It seems to me that the two Exhibits are conspicuously marked “Nkoro” (trench) on the eastern side which apparently separates Eluama from Umuobasi and on close examination one can see that the land in dispute is like a bowel anguished inside a bigger container. That container is Eluama people’s land with a barricade on the eastern side. The barricated is the trench (Nkoro) referred to above. I therefore hold that the land in dispute is situate at Eluama village and not in Umueze.” (The italics is mine).

Earlier on at page 164 of the record of appeal the learned trial Judge stated as follows in his judgment that:-

“Pleadings were filed and exchanged and subsequently both sides had their pleadings amended. In this judgment reference should be made to the amended statement of claim and amended statement of defence. The only issue which appears to have emerged from the parties’ pleadings is whether the land in dispute was the subject matter of customary grant by the forebears of the defendants to the plaintiff’s father Okwaradagu and his relative by the defendants’ forebears or whether the land in dispute was inherited by the plaintiff through an unknown chain of devolution from his original ancestral father down to himself.” (The italics is mine).