Itumo Onwe & Ors V. Eze Nwaogbuinya & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C

This appeal lies from the judgment of the court below in suit No. FCA/E/229/83. In that court the appellants had appealed against the judgment in suit No. AB/28/72, They remained as plaintiffs in the consolidated suit. The defendants in suit No. AB/8/66 were the plaintiffs in suit No. AB/28/72, and they became the defendants when the two suits were consolidated.

In order to appreciate the nature of the action before trial court. it is necessary to refer to the claims of the parties. In suit No. AB/8/66, the reliefs sought are for:-

(a) a declaration of title to the land called Azu Agu at Amechi Ezzamgbo;

(b) damages of 200pounds(N400) for trespass;

(c) perpetual injunction in suit No. AB/28/72, the reliefs sought are also:-

In suit No. AB/28/72, the reliefs sought are also:-

(a) Declaration of title to the plaintiffs’ piece and parcel of land called “Agu Azu Uwoga” situated at Umuezeaka village, Ngbo Ishielu Division Abakaliki and of annual value of 10 Pounds and as shown in plan No. ABC/10/72.

(b) 100 (One hundred Pounds) or (N200) general damages for the defendants jointly and severally entered the said land in dispute, cultivated in it and built huts on it.

(c) Perpetual injunction to restrain the defendants, their servants and/or agents from further trespassing into the said Agu Azu Uwoga.

With the consolidation of the two suits, the respective pleadings in the statement of claim of the plaintiffs in suit No. AB/8/66, and that of the defendants as plaintiffs in suit No. AB/27/72 were relied upon for the determination of the issues as joined in the said pleadings. However the case of each party as could be gathered from their pleadings and the evidence on record deserve to be stated briefly. It would appear that the plaintiffs’ case is that the Ogwurube Stream forms the ancient and natural boundary between the plaintiffs and the defendants. It is also their case that not only does the Ogwurube Stream form their boundary with the defendants, it also is the boundary of all Ezzamgbo (which clan the plaintiffs belong) and Mgbo (the clan to which the plaintiffs belong) and Mgbo (the clan to which the defendants belong). With regard to the land in dispute, it is the contention of the plaintiffs that the land has always been owned and possessed by their ancestors from time immemorial. Although they did not allege with particularity how their ancestors became seised of the land, they contend, however, that they referred to numerous acts of possession over the land. These included the building for their occupation, farming, cutting of timber trees, and installing of juju shrines thereon.

The defendants on the other hand are claiming that the land in dispute used to be inhabited by four different clans, namely Odifu, Umauma, Ulai and Otobola. According to them the four clans installed juju on the land which they worshipped together but that during inter-village wars the defendants’ ancestors drove away the said four clans took and worshipped the juju left on the land, and also installed their own. They also claimed that the land was their share of the land which was founded by their ancestor. That, then, was how they came to acquire the land in dispute. In that regard it is their contention that the Ogwurube Stream is not the natural boundary between them and the plaintiffs. They further contended that the boundary between them lies south of the Ogwurube Stream and is marked by a line of Akparata and other trees and at a place the Iyi Achi and Uwoga streams and a footpath. In support also of their claim to the disputed land, the defendants pleaded two native court judgments suit No. 26/47, and suit No. 13/51, and gave oral evidence thereon.

It is therefore contended for the defendants that an estoppel was thereby created against the interest of the plaintiffs with respect to their claim to the disputed land.

With regard to the disputed land, it would appear from the plans admitted as exhibits, the pleadings of the parties and the oral evidence given at the trial, that there is no dispute about its identity. It is also well known to the parties. It seems clear that the question arising from the pleadings and the evidence on record is which of the two boundary lines is the actual boundary between the parties. After due consideration of the evidence presented before the trial court, followed by addresses of their learned counsel, the learned trial Judge in a reserved judgment upheld the claim of the plaintiffs to the disputed land. As the defendants were dissatisfied with the judgment of the trial court, they appealed to the Court of Appeal. In that court, defendants also lost and have now appealed to this court. They shall from henceforth be referred to as the appellants, while the plaintiffs would be referred to as the respondents.