Kalu Njoku & Ors V Ukwu Eme & Ors

LawGlobal-Hub Lead Judgment Report

DAN IBEKWE, AG. J.S.C

This is an appeal against the judgment of Allagoa, J., in Suit No. HU/96/61 delivered on 30th November, 1966 at the Umuahia High Court, dismissing the claims of the plaintiffs, herein appellants. The writ of summons is endorsed as follows:-

1. The Plaintiff’s claim against the Defendants is for:

(a) Declaration of title to the parcels or pieces of land known as and called “Orua Ndi Uke” (including Abo Ukwu land) “Iyi Arunsi” (hereinafter called the said land) situate in Amangwu Ohafia, Bende Division, Owerri Province. The annual rent value is 5pounds.

(b) An injunction to restrain the Defendants, their heirs, agents and servants from further unauthorised entry upon the said land.

(c) 20pounds damages for trespass upon the said land.

It will be seen from the above claim that the land which forms the subject matter of the dispute is comprised of three parcels of land known as “Orua Ndi Uke:, “Abo Ukwu” and “Iyi Arunsi”, situate in Amangwu Ohafia Bende Division, Owerri Province.

Put in a nutshell, the plaintiffs’ case is that these parcels of land in dispute belong to them as the descendents of their maternal ancestors – the “Ume Nne Ibuo” Family. It is part of their case that they and the defendants do not have a common maternal ancestry, and that the respondents in fact, belong to an entirely different maternal line known as the “Umu Ikwu Mgbo”.

The plaintiffs’ traditional history is to the effect that they, as owners of the three parcels of land in dispute had remained in possession of them until the defendants purported to confiscate the said lands because a member of the plaintiffs’ family named Obunka murdered one Kalu Akwu, a member of the defendants’ family. Later, in compliance with “Native Law and Custom” there was an atonement as a result of which the lands reverted to the plaintiffs. As against this story, the defendants maintain that they enjoy a common maternal origin with the plaintiffs. According to the defendants’ story, the dispute arose in the time of Obua Nka and Kalu Aja over the distribution of farming strips which led to the partition of the land in dispute between the two families. The defendants also relied on a plea of res judicata.

At this stage, we think it is appropriate to set out the relevant paragraphs of the Amended Statement of Claim as follows:-

2. “The Defendants are farmers from Ngodo Amaekpu Ohafia Bende Division of “Umu Ikwu Mgbo” family and are sued jointly and severally in their personal capacity.
3. The “parcels of land in dispute” – “Iyi Arunsi” “Orua Ndi Uke” and “Abo Ukwu” have been owned by the Plaintiff’s family “UMU NNE IBUO” from time immemorial and have since used the same for farming purposes.
4. “Heads of the plaintiffs’ maternal family, “UMU NNE IBUO” held these parcels of land in dispute” successively for the other members of the family until the time of Obunka who murdered Kalu Akwu, a member of the Defendants’ family, and thereupon” these parcels of land in dispute were temporarily confiscated by Ifiaku (then head of the Defendants’ maternal family) pending the “Igwa Ochu”, atonement – of the murder of the Plaintiffs’ family before the parcels of land in dispute could be recovered by the Plaintiffs.
5. According to the Native Custom, the Igwa Ochu entailed the surrender of another human being for the burial rights of the deceased, by the family of the murderer. Obua Nka surrendered a slave for the Igwa Ochu, paid 20pounds for ‘Ituha Nma’ sheathing of sword, and finally atoned to Ifia-akwu for the murder of Kalu Akwu.
6. Therefore the said parcels of land in dispute reverted to the original owners, the Plaintiffs’ family without any reservations. But many years after when English Missionaries made their advent into Amangwu some presumptuous members of the 1st defendant family began to use the old wrong inflicted by a member of the Plaintiffs’ family on a member of the Defendants’ family as an excuse for interfering with the plaintiffs’ use of the parcels of land in dispute.
7. The plaintiffs and the defendants do not belong to the same maternal ancestry, Umunne Ibuo, and do not own the parcels of the land in dispute in common with the defendants’ family. The defendants have no ground for claiming ownership of the parcels of the land in dispute than that they belong to the same maternal ancestry as the plaintiffs.”

In the relevant paragraphs of their Statement of Defence, the defendants for their part averred as follows:-

3. “The Defendants admit in respect of paragraph 2 of the Statement of Claim being farmers living at Ngodo Amaekpu Ohafia; but say that they are not of the maternal family of “Umu Ikwu Mgbo” a fictitious name unknown to the defendants; rather the Defendants say that they are of the maternal family of “Umu Nne Ibuo” like the Plaintiff’s but of a different house separate from the Plaintiff’s House since the time of Obu Nka, Plaintiff’s predecessor and Kalu Aja, Defendants’ predecessor both of whom belonged to “Ume Nne Ibuo” maternal family.
4. The Defendants deny paragraphs 7 to 11 of the Statement of Claim in which the Plaintiff avers the traditional story of his family in connection with his claim in respect of these three parcels of land, the subject matter of this action.
5. In further answer to paragraphs 7 to 11 of the Statement of Claim the Defendants say they and the Plaintiff are of the same maternal family of UMU NNE IBUO and from the time of their maternal uncle Okpuali Uke until the time of Kalu Aja, Defendants’ predecessor and Obu Nka the Plaintiff’s predecessor and when a dispute arose over the distribution of farming strips in all lands in the family.

Thereupon the family divided into two Houses and so also all the family parcels of land were divided, and since then the Defendants have always exercised maximum rights of ownership over those portions of UMU NNE IBUO family land allotted to them like IYI ARUNSI, ORUA NDI UKE AND ABO UKWU.”

At the trial, both parties called evidence in support of their respective claims. Both parties employed the services of the same surveyor Mr. J.T. John. The plaintiffs’ plan was marked Ex. ‘A’ and the defendants’ plan Ex. ‘B’. In addition, the defendants put in evidence Ex. ‘C’ the proceedings and judgment in Ohafia Native Court Civil Suit No. 223/33 in which the plaintiffs in the present action sued the 1st defendant for declaration of title over Orua Ndi Uke, and the court awarded the plaintiffs the portion of Oru Ndi Uke verged Orange, and also awarded to the Defendants that portion verged Green as per the defendants’ plan, Ex. ‘B’.

At the conclusion of the trial the learned trial Judge in dismissing the plaintiffs’ claim held as follows:-

“On the case as a whole I find that the Plaintiffs’ evidence in support of their claim does not warrant making a declaration in their favour.”