Friday Kamalu & Ors V. Daniel Nwakudu Uka Umunna & Ors. (1997)

LAWGLOBAL HUB Lead Judgment Report

U. ONU, J.S.C. 

The plaintiffs, herein appellants, had in a representative capacity sued the defendants, herein respondents, also in a representative capacity at the Imo (now Abia) State High Court sitting at Aba claiming the following reliefs:-

“(i) Declaration that the plaintiffs are the only descendants of the late Daba.

(ii) Declaration to the customary right of occupancy in respect of ‘Egbelu Umudaba’ land and ‘Okpulo Daba’ the annual value of which is N10.00 situate at Umuocham within the Aba Judicial Division

(iii) N400.00 being general damages for trespass.

(iv) Perpetual injunction.”

Pleadings were ordered, filed and exchanged in this case which has a tinge of family status. While the appellants amended and further amended their Statement of Claim and the respondents delivered their Statement of Defence, the case went to trial at which four witnesses testified for the appellants and the same number of witnesses were called in support of the respondents’ case. After counsel on either side had addressed the court, the learned trial Judge (Njiribeako, J.) awarded to the appellants title to the two lands in dispute while dismissing their claim for trespass and injunction.

Aggrieved by the said decision the respondents then as appellants appealed to the Court of Appeal, Port Harcourt Division (hereinafter in the rest of this judgment referred to as the court below) which on 11th December, 1990 allowed the appeal, set aside the judgment of the trial court and dismissed the appellant’s claims in their entirety. The appellants have now appealed to this court on three original grounds of appeal which by an amendment of the Notice of Appeal granted by this court were increased to four.

The summary of the appellants’ case is that they are the descendants of DABA and are of the Umudaba family while the respondents are the descendants of OGELE and they constitute the Umuogele family. They are two distinct families. DABA and his relations went a hunting and captured a man during the hunting expedition whom they named “OGELE”, Ogele being a metal gong used for hunting and also as a musical instrument. Daba brought Ogele home and gave him land to live on. By act of providence, his descendants who are now the respondents, are more numerous and wealthier than the descendants of Daba who are the appellants.

Daba begat Enwereonye who in turn beg at Kamalu. When Enwereonye died, Kamalu was so tender that he was taken to Ukaumunna, one of the ancestors of Umuogele where he was brought up. He lived there and became a wealthy and an influential Chief. It was there that he begat the appellants and lived with them, with the advice that they should go back to their own land. When the appellants and their father Kamalu lived at Umuogele, they and the defendants saw themselves as brothers and were doing everything in common including the use of the land as members of one family. After the death of the influential Kamalu, the relationship became strained whereby the appellants decided to go back to their ancestral land.

The respondents countered in both their pleadings and evidence that Ogele, their joint ancestor, founded the lands in dispute’ Ohia lhuala’ and ‘Egbelu Umuogele’ denoted in Plan No. OKE/D verged pink and tendered as Exhibit B. These lands the respondents asserted, their (appellants and respondents) kith and kin from time immemorial have enjoyed communally as a single family of Umuogele. The respondents finally pleaded and testified that ‘Daba’ and’ Umudaba’ never existed in Ocham village in Ngwa. They pleaded res judicata, estoppel, standing by and acquiescence as well as the several letters the 2nd appellant wrote to the 1st respondent as head of Umuogele family of which he is a member. The parties subsequently exchanged briefs of argument in accordance with the rules of court.

The appellants for their appeal have formulated three issues from their three grounds as arising for determination. The respondents similarly submitted three identical issues for our determination. I only need to set out the appellants three issues thus:

(i) Whether the Court of Appeal’s approach to the dispute between the parties as contested in the High Court is justified.

(ii) Whether the Court of Appeal was justified in relying on Exhibits ‘C’ and ‘E’ and treating them as raising issue estoppel to set aside the judgment of the trial court.