Justus Nwabuoku & Ors V. Francis Onwordi & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C

This appeal involves two communities. Umuodafe of Ibusa and Okpanam. The people of Umuodafe of Ibusa are the plaintiffs/respondents. The people of Ogbeowele quarters of Okpanam are the defendants/appellants. Ibusa and Okpanam are neighbouring towns. They are separated by a large expanse of farm land. Apart from the large expanse of farm land separating them, this litigation has also separated them. The large expanse of farm land is the bone of contention of this appeal. Both parties claim ownership of the land.

The case of the plaintiffs/respondents is as follows: The foremost ancestor of the plaintiffs, Umuejei, founded Ibusa. He had three children Oshe, Ezebuogu and Ezemeze. Before Umuejei died, he shared the land amongst his three sons. Ezebuogu inherited Akwu Ogonogo, Akwu Ogonogo Ekiti, Akwu Okpokolo, Akwu Ogede, Akwa Mmanu, Akwu Imilikiti and Akwu Mkpili from his father. Like his father, Ezebuogu lived on the land, farmed on it hunted on it and reaped the economic trees on it.

Odafe, the son of Ezebuogu, inherited the parcels of land from his father and made use of them like the father. The plaintiffs, who are the descendants of Odafe, inherited the land and they have been farming, hunting, worshipping their juju on it, reaping the economic trees and letting portions of it to tenants. They traced the genealogy of Odafe. Plaintiffs said that the Achi tree is the boundary between the two communities. In October, 1979, the defendants crossed the boundary of the land and cleared part of the land of the plaintiff, the immediate cause of the action against the defendants.

The defendants/appellants understandably presented a different case. They inherited the land in dispute from their ancestor, Dioha, the founder of Obodogwugwu Dioha was the father of Okpalani who founded Okpanam many years ago. Okpalani had four sons: Ozoma, Achala, Anatogba and Dioha. Dioha who founded Obodogwugwu had seven children, namely: Chime, Ogboduma, Osedi, Obiajie, male, Idigbe and Omake. Before his death, Dioha told his children to farm on the land together.

On the southern part of the land are the people of Odauku and Odanta of Ibusa and after Odanta are the Ogboli Atakpo people of Ibusa, and that they have boundary with the people of Obodogwugwu of Okpanam on Etukuche land and the people of Obodogba of Okpanam. There is a cement pillar on the boundary between Obodogba people of Okpanam and Ogbeogwugwu people of Ibusa. The boundary between Ibusa and Okpanam is marked by Achi tree and Ububa Ngwulor tree but the Achi tree was burnt down. There are two hills on the boundary, Ani Obida (juju shrine), Alunsi Ngere, Okwuta Oji and at Okwuta Oji, they have a common boundary with Odanta people of Ibusa. They have been farming on the land and they have yams, cassava and other crops.

The plaintiffs/respondents brought an action for declaration that they are entitled to a Statutory Right of Occupancy over the land in dispute, N5,000.00 general damages for trespass and an injunction to restrain the defendants/appellants, their servants and agents from committing further acts of trespass on the land in dispute.

The learned trial Judge gave judgment to the plaintiffs/respondents. Appeal to the Court of Appeal was dismissed. Dissatisfied, the appellants have come to the Supreme Court. Briefs were filed and duly exchanged. The appellants formulated the following issues for determination.

“(a) Whether the learned Justices of the Court of Appeal were right in not upholding the appellants appeal having regard to the facts and circumstances of the case.

(b) Whether the plaintiffs/respondents discharged the onus of proof which rested on them in respect of the land which they claimed.

(c) Whether the disregard of Exhibit “D” by the courts below did not occasion a miscarriage of justice to the appellants.”

The respondents agree with the issues raised by the appellants.

Learned counsel for the appellants, Chief H.O. Ogbodo, said that in challenging the facts as presented by the respondents, the appellants were consistent throughout their testimony. He referred to Paragraphs 5 and 6 of the Amended Statement of Defence and Plan No. LSF7892. He submitted that the appellant denied every averment in the last Statement of Claim, including Exhibit A, Plan No. KPE2910. He cited Ezeudu v. Obiagwu (1986) 2 NWLR (Pt.21) 218.

Learned counsel submitted that the learned trial Judge was wrong in disregarding Exhibit D, which the Court of Appeal also disregarded. Narrating the purpose of tendering Exhibit D, counsel cited Agbahomovo v. Eduyegbe (1999) 2 S.C. 79; (1999) 3 NWLR (Pt.594) 170 at 182.