John Onyenge & Ors. V. Chief Loveday Ebere & Ors (2004)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

This case has moved through three courts, viz: Ukwa Customary Court, Ukwa Local Government Area; Customary Court of Appeal, Abia State and the Court of Appeal, Port Harcourt Division. This is the fourth court.

The plaintiffs, who are the respondents in this court, claimed against the defendants, who are the appellants in this court: a) a declaration that the plaintiffs are entitled to the customary right of occupancy in and over the piece of land called Egbelu Ulogor; b) N2,000 general damages; and (c) perpetual injunction restraining the defendants, their servants, agents and or privies from committing further acts of trespass on the said land.

The trial court gave judgment to the plaintiffs in terms of their claims, except the relief on trespass where the court awarded N700.00 damages. The Abia State Customary Court of Appeal allowed the appeal of the defendants and dismissed the case of the plaintiffs. The plaintiffs appeal to the Court of Appeal was allowed. That court restored in full the judgment of the trial court. It is the judgment of the Court of Appeal that the defendants as appellants have appealed to this court. And so the plaintiffs won in two courts (Customary Court, Ukwa and Court of Appeal), while the defendants won in one court (Customary Court of Appeal, Abia State).

Let me state the facts of the case. The plaintiffs’ case is that they are descendants of one Ulogo who deforested the land in dispute, “Egbelu Ulogo”, situate at Owaza in Ukwa Local Government Area within the jurisdiction of Ukwa Customary Court. The plaintiffs stated in evidence that one Elechi, the 1st son ofUlogo, their ancestor, pledged the land in dispute to one ofthe defendants’ ancestors, Nwosu Nwokiri for 400 manilas. The pledge was not redeemed by subsequent heads of he plaintiffs’ family until when the 1st plaintiff’s father, Ebere Oforji, as head of Ulogo family, approached the defendants for redemption of the pledge of the land in dispute. Ebere Oforji tendered N6.68 as the equivalent of 400 manilas to the defendants which they refused to accept claiming that the land in dispute was not on pledge to the defendants and particularly that the plaintiffs are not the descendants of Ulogo.

For the refusal of the defendants to accept redemption of the pledge and asserting ownership of the land in dispute, the plaintiffs, in accordance with the custom of the parties deposited the redemption money of N6.68 with “Akpam Juju” at Obuzo, Asa in Ukwa Local Government Area. PW2, Nna Nwankpa, was the Chief Priest of the “Akpam Juju”.

The evidence is that the parties appeared before the ‘Akpam Juju’ and each party stated its case before the juju priests. The juju priests gave a decision that the plaintiffs should take oath since the defendants had refused to take the oath. The defendants were ordered to provide any juju of their choice for the plaintiffs, within eight days, to take the oath. This, the defendants failed to do but rather summoned the plaintiffs before a foreign juju, “Ogwugwu Akpu” of Okija in Anambra State, demanding that the plaintiffs should take oath before the juju that the land in dispute is the plaintiffs’ family land and that the said land in dispute was pledged to the defendants’ ancestor by the plaintiffs’ ancestor. The plaintiffs agreed to take the oath and the “Ogwugwu Akpu” juju from Okija in Anambra State was brought down to Ukwa and placed on the land in dispute. The plaintiffs took the oath that they are descendants of Ulogo and that the land in dispute was the property of their ancestor, Ulogo. On the death of Ulogo, the land was pledged by their ancestor, Elechi, to the defendants’ ancestor. The plaintiffs survived the customary one year of the oath taking and celebrated the survival in compliance with the custom of Asa-Ukwu people to which the parties hereof belong. The plaintiffs thereafter became entitled to the exclusive possession of the land in dispute by the custom of the parties. That is the story of the plaintiffs.

The defendants, on the other hand, also laid claim to the ownership of the land in dispute. The defendants maintained that they were on the land in dispute not as pledgees but in exercise of their rights as owners of the said land. The defendants admitted that the matter now before the court was referred to the “Akpam Juju” at ObuzoAsa for arbitration but that the arbitration was inconclusive as they insisted that more than one member of the plaintiffs’ family should swear to the juju. As a consequence they referred the matter to the “Ogwugwu Akpu” juju who ruled that seven members of the plaintiffs’ family should swear to an oath. It is the defendants’ case that on the date of oath taking the juju priest from Okija who administered the oath made it abundantly clear that the juju will not kill anyone unless those who took the oath enter into the land to farm thereon. The defendants maintained that after the oath taking the plaintiffs never entered into the land in dispute.

The parties filed and exchanged briefs. The appellants formulated four issues for determination:

“(1) Were the learned justices of the Court of Appeal right when they held that the plaintiffs proved the ownership of the land in dispute by oath taking and that the applicable custom to the oath administered by the juju priest from Okija in Anambra State was that of Ukwa people and not that of the people of Okija in Anambra State

(2) Were the learned justices of the Court of Appeal right when they held that the appellants could be held liable in trespass when there was evidence that they were in exclusive possession of the land in dispute

(3) Were the learned Justices of the Court of Appeal right when they held that the plaintiffs proved the alleged pledge of the land in dispute to the defendants

(4) Were the learned justices of the Court of Appeal right when they held that the Customary Court of Appeal was in serious error when it interfere with the decision of the trial court on facts”

The respondents also formulated four issues for determination: