Kalu Obasi and Ors V Chief Okereke Oti and Ors (1966)

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ONYEAMA, J .S.C. 

The plaintiffs claimed against the defendants declaration of title to an area of land drawn on a plan No.ESP/2136(LD) which was in evidence as Exhibit A, £100 damages for trespass on the land, possession of the land, and an injunction to restrain further trespass.

Their case was that the land in question which they call ‘NDURU’ had always belonged to their people of AmaekeUtutu village; they farm it; live on it, have their village juju on it and have a market on it. They claimed that they granted a portion of the land to members of a religious sect, ‘Jehovah’s Witnesses’, and that these members built a Hall on the land.

It was also their case that they had made a grant of a portion of the land in question to the defendants’ ancestors who had found their ancestral land “Ebom Ogo” too small for their increasing numbers; they alleged that the defendants are now settled on this portion which was clearly defined by boundary trees.

The plaintiffs pleaded a number of native court suits between them and the defendants’ people which they suggest establish their title to the land. The defendants for their part claimed that the land which they call ‘AZU OWUO’ belongs to them, and they showed this land on a plan No.JJ.4/64. They alleged that they farm the land, have their jujus on it, and have a water tank on it. They rely on the judgment of the Senior Resident of Calabar in a Suit No.452/28 which originated in the Ihe-Ututu Native Court which, according to them, “reversed and set aside the judgment of the Native Court and the District Officer and awarded title to the present defendants (the plaintiffs in the said Suit No. 452/28).”

Both parties are agreed that this Suit 452/28 related to the land in dispute and it will be appropriate at this point to deal with it. In that suit Nlenaya Kalu of Amanku sued Chief Elem Nchege of Ameke claiming a declaration of title to land called ‘AZI OWUORWUOR.’ It is admitted by both parties, although it was not so expressed, that the suit was between their respective communities.

The Native Court, by a majority, gave judgment on the 6th of August, 1928, as follows: “The land Ndoro or AZI OWUORWUOR for the Deft. Case dismissed.” This was confirmed on the 28th of September, 1928 by the Acting District Officer. On the 11th April, 1933, the Senior Resident of Calabar Province made the following order:

“By virtue of the powers conferred on me under Native Court Ordinance I hereby annul the judgment of the Ututu Native Court in Civil Case 452/1928:-

Nlenaya Kanu of Amanku

versus

Chief Elem Nchege of Ameke

as confirmed by Mr D. A. F. Shute, Acting District Officer, Aro, on 20th September, 1928.”

Regarding this order, counsel for the plaintiff submitted that the Resident acted without jurisdiction since, if he was exercising review powers under s.25 of the Native Courts Ordinance No. 44 of 1933 he had only six months within which to exercise them, but if he was exercising powers on appeal, then an appeal had to be brought within thirty days, and there was evidence that no appeal was lodged.

The learned trial judge accepted this submission and added that assuming there was no want of jurisdiction the failure of the Senior Resident to substitute his own decision or order for that which he was annulling left that order in full force so that the defendants could be met with a plea of estoppel. Relying on this view of the effect of Suit 452/28 and on his findings of fact he gave judgment for the plaintiffs.