Joe Iga & Ors V. Chief Ezekiel Amakiri & Ors (1976)
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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.
Paragraph 8: The land in dispute in this action is what had remained unallotted or unapportioned by the three families of the main Amakiri House as it then was and continued to remain as the joint or common property of the three families. It is now the joint and common property of the Amakiri House who are the plaintiffs and the Iga House who are the defendants.
Paragraph 9: When in 1954 the members of Opuiyo Family sued the members of Iga House claiming title over this land, the first plaintiff applied on behalf of Amakiri House to be joined as a defendant. His application was not opposed by any person and he was joined as a defendant. Chief Jeremiah Iga, the then Head of Iga House and Joe Kuro, also known as Joe Iga, who is the 1st defendant in the present suit were the other defendants in that suit of 1954 (Okrika Native Court and Others). The record of proceedings in this case will be relied upon.
Paragraph 10: The land in dispute is situated at Tomobiri Waterside in Tomobiri Okrika and is bounded on the north by the Tomobiri River on the south by the area of land allotted to various persons of both the plaintiffs’ and defendants’ families, and on the west by the land of Abam Family of Okrika. The land is known as Tomobiri Poku Kiri but was referred to as Tomoncare Poku Kiri in the Okrika Native Court Suit No.191/54 aforementioned. It is particularly delineated in the Plan No.OK/RSD 5/71 of 21st October, 1971 filed with the Statement of Claim and therein verged Red.
Statement of Defence:
Paragraph 7: In answer to paragraph 7 of the Statement of Claim, the defendant will state that the land in dispute was never owned jointly by the Iga, Oputenga and Amakiri Families. The Amakiri Family are strangers to Tomobiri which is in Okrika town. From time immemorial only the Iga House allotted Tomobiri land to individuals. No member of Amakiri House can occupy any land in Tomobiri without the permission of the Iga House. This was admitted in court in Charge No.PMC/604C/69 the record founded on at the trial.
Paragraph 8: The defendants deny paragraph 8 of the Statement of Claim. The land known as Tomobiri belongs to the Iga House. All unapportioned land at Tomobiri land is the property of the Iga House.
Paragraph 9: In answer to paragraph 9 of the Statement of Claim, the defendants will state that when in 1954 the members of Opuiyo Family sued members of the Iga House claiming title over some portion of defendants’ land the 1st plaintiff applied to be joined as co-defendant in support of Iga House not as representing the Amakiri House, and so judgment was given for the Iga House not for the Iga and Amakiri Houses. At that time, 1st defendant was begging for land from the Iga House and was very friendly with Chief Jeremiah Iga of Iga House and was giving much gifts to Chief Jeremiah Iga in order to convince Chief Jeremiah Iga of his good intentions. Hence, Chief Jeremiah Iga, carried away by crafty behaviour of the 1st plaintiff made certain incorrect statements in the Native Court to please 1st plaintiff and for which Chief Jeremiah Iga was fined by his House Elders and members. The land in dispute as between Opuiyo Family and the defendants in Okrika Native Court is only part of the land in dispute in the present case and is verged green in the plan filed with this Statement of Defence.
Paragraph 10: The land in dispute is situated at Tomobiri in Okrika and is bounded on the north by Tomobiri Waterside, on the south by the area of land belonging to the defendants on which defendants’ families built houses and gave only three portions to plaintiffs. On the west by land belonging to Okujagu and Bileme Olapa Families. The land is never known as Tomobiri Poku Kiri and is never known as nor referred to as Tomoncare Poku Kiri. The land in dispute is particularly delineated in the Plan No. EAAC/R.51 of 21/6/72 filed with this Statement of Defence and is therein verged Red.”
It appears to us that the issues raised by the paragraphs of the Statement of Defence quoted and referred to above (in view of the admission that the land the subject matter of the action before the Okrika Native Court in Suit 191/54 is part of the land in dispute in this case) are: (1) whether that court gave judgment for Iga House alone or for Iga and Amakiri and Oputenga Houses. (2) whether Tomobiri land was settled on by Amakiri, Iga and Oputenga the ancestors of the three families and owned jointly by the three families, or whether Amakiri was a stranger having no community of interest with Iga and Oputenga Houses.
After hearing evidence, Allagoa, J., narrowed down the issue to: “Whether the defendants have before acknowledged the plaintiffs as joint owners of Tomobiri in which case the proportion of their Holdings is not relevant to their assertion of their rights over the land.” Dealing with this issue in his judgment, Allagoa, J., inter alia observed as follows: “Although the 1st and 3rd defendants have sought to discredit the plaintiffs and have painted a different picture of the traditional history of the relationship between Iga and Amakiri Houses, this is not supported by the account of their ancesto
Other Citation: (1976) LCN/2211(SC)