Israel Arum & Anor V. Okechukwu Nwobodo (2003)

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MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

The suit which culminated in this appeal commenced with a plaint note (civil) in the Customary Court of Awkunanaw, holden at Ozalla of Enugu State of Nigeria. Assigned suit No. AWK/3/97, the case was filed on the 14th November, 1997, and judgment was delivered on 7th September, 1998. The trial Customary Court pronounced judgment in favour of the plaintiffs granting the two claims of the plaintiffs against the defendants.

Dissatisfied with the judgment of the trial court, the appellants appealed to the High Court in its appellate jurisdiction. On the 1st of November, 2000, the Hon. Justice E. C. Ahanonu of the Enugu State High Court pronounced judgment in the appeal, affirming the decision of the Awkunanaw Customary Court. This suit is a further expression of the discontentment of the appellants, who have now lodged a further appeal before this court.

The appellants in this court were the defendants/appellants before the lower courts, while the respondent was the plaintiff/respondent and will respectively be referred to as appellants and respondent in this judgment.

The claim of the respondent as plaintiff before the trial Customary Court is for:
“1. Declaration of title to a customary right of occupancy to a piece and parcel of land known as and called “Ala Agu Akpasha” which is situate at Akpasha Atugbuoma in Akegbe Ugwu in Nkanu West Local Government Area of Enugu State.
2. Court injunction restraining the defendants, their agents, servants and relations from further trespass into the said land until the matter is disposed off.”

At the hearing before the trial Customary Court, a total of 8 witnesses formally testified in the court with each side calling three witnesses in addition to their own testimonies. The plaintiff testified and called his witnesses, while the two defendants were represented by the 2nd defendants, who also testified and called three other witnesses. The first defendant reported ill and was unable to attend the court proceedings. At the close of the case of both sides, the court ordered a visit to the site of the disputed land.

During the inspection of the locus in quo, some persons, other than the witnesses who testified in the court appeared and made statements on the subject matter. The trial court recorded extensively and relied upon some of the statements made at the locus in quo. In its judgment delivered on the 07/09/98, the trial court referred to and relied particularly on the statement of one Oko Nwobodo Nta, who the court described as the oldest man in the community.

The plaintiff, Okechukwu Nwobodo stated his case after taking an oath on the Holy Bible (from page 11 of the record of proceedings).

I must observe that the testimony of the plaintiff as recorded was some kind of a mixed grill of verbatim and indirect reportage by the trial court. His testimony took this pattern:
“My name is Okechukwu Nwobodo …” (Italics mine)
“Age 32 years old,”

After this, the opening remark was that of the trial court in these terms “The plaintiff told the court that the land in question is an inheritance from his father. The area was in dispute over boundary between his family and Ugwu-Agba Amechi Awkunanaw when his father was still alive. Then in 1984, the 1st and 2nd defendants went into the land and leveled it but ‘myself and my bother’ (now deceased) went there and cultivated the area with cassava. But after ‘we had cultivated the area:’ the 1st defendant (i.e. Israel Arum), came to his father with some palm wine and kola nuts, praying him to allow him plant on the parcel of land but his father bluntly refused …” ‘I was later bailed and I reported back to Umuatugbuoma people, who advised him, 1st defendant, in his own interest to leave the land for them, i.e. the plaintiff and his family but he refused …’

In brief, the sum total of the case of the plaintiff is that the 1st defendant, Israel Arum and his brothers had trespassed into his land and persisted with their acts of trespass inspite of the admonition and intervention of the Local Community urging them to steer clear of the land. The plaintiff called three other witnesses in support of his case.

The 2nd defendant testified as DW1 for himself and the 1st defendant, Israel Arum. His statement as recorded by the trial court on pages 41 – 43 was a verbatim report and took this pattern:
“Name: My name is Onyeabor Arum.
Address: I live at Umuatugbuoma, Akegbe Ugwu Awkunanaw.
Occupation: I am a Security Man (Public Servant).
Age: I was born in 1927 i.e. 71 years ago.
I know the plaintiff. His name is Ewo Nwobodo Ewo.
I speak on behalf of myself and the 1st defendant – Mr. Israel Arum.

I also promise that whatever be the decision of this court in this matter, will be binding to myself and my brother, Israel Arum. The land in dispute is my father’s land. I have been planting with my father in that place for about 60 years now…”
The defendants also called three witnesses in support of their case.

The testimonies of the parties show that both parties lay claim to the ownership of the land. It was however, the respondent who took the further step of seeking to have a formal declaration of his title made in a court of law where it also sought and obtained the protection of the court by an injunction to restrain the defendants, its agents and privies from further trespassing into the land.