Joe Iga & Ors V. Chief Ezekiel Amakiri & Ors (1976)

LawGlobal-Hub Lead Judgment Report

OBASEKI, AG. JSC

This appeal by the defendants in the court below is against the judgment of Allagoa, J. (as he then was), delivered in the High Court of the Rivers State at Port Harcourt on the 9th day of July, 1973, granting the two claims of the plaintiffs which read in terms endorsed on the Writ of Summons and repeated in paragraph 12 of the Statement of Claim as follows:

“(1) A declaration that the land in dispute known as Tomobiri Poku Kiri or also called Tomoncare Poku Kiri at Tomobiri waterside or water front in Okrika is the joint or common property of the Amakiri House and Iga House.

(2) A perpetual injunction to restrain the defendants, their agents, servants, privies or otherwise from dealing with the said land or using same without the prior information, consent or authority of the plaintiffs or of the Amakiri House and Iga House jointly.”

Twelve grounds of appeal were filed but those which raise questions worthy of consideration in this appeal are grounds 3, 9 and 11 which in terms read as follows:

(3) The learned trial Judge erred in law in treating the judgment of the Native Court in Suit No.191/54 as estopping the defendants from denying that the land in dispute belonged jointly to the plaintiffs and the defendants when the said suit was not between the same parties as the present suit, and issue was not then joined as between the plaintiffs and the defendants herein in that suit.

(9) The learned trial Judge misdirected himself on the facts when he stated as follows: 1st defendant and Benjamin Fabema 6th witness for defendants both gave evidence in the Native Court and from their testimony in this court they either have very short memories or told deliberate falsehood when they maintained that Amakiri House is a recent creation and that members of Amakiri House name from Bolo when

(i) The 1st defendant herein did not in fact give evidence in the trial before the Native Court, Exhibit ‘C’.

(ii) The evidence of the 6th defendant’s witness Benjamin Fabema in Exhibit ‘C’ did not touch upon the question as to the recent creation of Amakiri House or whether or not the Amakiri House came from Bolo.”

(11) ERROR IN LAW The learned trial Judge erred in law in relying extensively on the proceedings and evidence given in Suit No. 191/54 – Exhibit ‘C’-

(1) to make important findings of fact against the defendants when the specific portions of the evidence upon which the learned trial Judge made findings against them were not specifically put to these witnesses in cross-examination or specifically referred to during the hearing and the defendants were thereby not given an opportunity of giving their own version of the facts supposed to be against their case in the record of proceedings of the said suit.

(2) to make a finding on the relationship of the land in dispute in this suit and that in Exhibit ‘C’ when no specific reference was made during the course of the evidence in this suit to that portion of Exhibit ‘C’ on which the Judge relied with regards to the visits to the locus in quo in Suit 191/54.

We will at this juncture before dealing with the facts established by evidence briefly refer to the main issue raised in the case by reference to paragraphs 7, 8, 9 and 10 of the Statement of Claim and paragraphs 7, 8, 9 and 10 of Statement of Defence.    These paragraphs contain the following averments: Statement of Claim:

Paragraph 7:   “The land in the area on which Amakiri, Iga and Oputenga settled was owned jointly by the three families and was common property of the three families. It was the custom and tradition that the three families together apportioned or allotted any portion of the land to any member of any of the families desiring to erect a building and this has been the practice from time immemorial. Any area so apportioned or allotted became the property of the individual to which it was given and remained the exclusive property of that person and his descendants. Every unallotted portion of the land however remained and was owned as the joint or common property of the families and could only be allotted or apportioned by the said families jointly.