Ogbali Akpagbue & Ors. V. Nduoku Ogu & Ors. (1976)

LawGlobal-Hub Lead Judgment Report

C. O. MADARIKAN, J.S.C. 

This appeal relates to two actions which were consolidated and tried together in the High Court, Ughelli.         The first action was suit No. UHC/8/71 in which the present Appellants were the Plaintiffs, and their claim against the defendants, now Respondents, reads: – “The Plaintiffs seek the following orders from the court against the defendants jointly and severally: –

1. Declaration of title to that piece or parcel of land known as and called OBOJI, situate at Ike-Onicha bush in Kwale within the jurisdiction of this court, the area and position are as shown in a plan to be filed later.  The value of the land is about N200.

2.N100 damages for trespass committed by the Defendants on the said land.

3 Perpetual Injunction restraining the Defendants their servants and agents from further entering on and committing acts of trespass on the said OBOJI land.

“The second action was suit No. UHC/15/71 wherein the present Respondents (as Plaintiffs) fort their part filed an action against the present Appellants in Utagha Customary Court. The action was at the instance of one of the parties transferred to the High Court, Ughelli and, as stated earlier, numbered as suit No. UHC/15/71. The claim in the action was for:-

“1.Declaration of title to that piece or parcel of land known as and called “OBOJI” lying and situate at Umuchime-Oka within the jurisdiction of this Honourable Court, the area and features of which will be more particularly shown and delineated in a survey plan to be filed later by the Plaintiffs in this court. The annual value of the land is N100.

2. N200 general damages for trespass in that the Defendants, without the consent and authority of the Plaintiffs, broke and entered into portions of the said land for farming purposes between 1969 and 1971.

3. Recovery of possession from the Defendants of some portions of the said OBOJI land held under customary tenure, in that the Defendants committed acts inconsistent with and in defiance of the Plaintiffs title to portions of the said land.

4.PERPETUAL INJUNCTION restraining the Defendants, their agents/servants or privies from entering or further entering any part of the said piece or parcel of land aforesaid without the Plaintiffs” prior consent and authority.”

In the course of the hearing of both actions in the High Court, the Plaintiffs (now Appellant) in suit No. UHC/8/71 were referred to as Plaintiffs; and the Plaintiffs (now Respondents) in suit No. UHC/15/71 (who were the Defendants in suit No. UHC/8/71) were referred to as Defendants. By way of convenient shorthand, we propose to adopt the same nomenclature for the remainder of this judgment.

In view of the prolix nature of the pleadings, we do not propose to reproduce them in this judgment.  It is sufficient for us, at this stage, to make cursory reference to the pleadings:-           Suit No. UHC/8/71   The amended statement of claim dated the 13th of October, 1972 runs into 26 paragraphs; and the amended statement of defence dated 20th of October, 1972 is 16-paged and consists of 36 paragraphs.   In Suit No. UHC/15/71 the statement of claim dated the 4th of January, 1972 is divided into 27 paragraphs; and the amended statement of defence which was filed in reply was dated the 13th of October, 1972 and also runs into 36 paragraphs.             At the trial, the plan of the Plaintiffs (No. TJ. M1161 of 25/8/71) and that of the Defendants (No. MWC/1/71 of 25/8/71) were admitted in evidence by consent and marked as Exhibits A and B respectively.  

The 1st Plaintiff (aged about 75years) then gave copious evidence in support of the  Plaintiffs case.  He testified that the Plaintiffs who are natives of Ike-Onicha brought the action as representatives of the Ike-Onicha community.  He described the location of the land in dispute (Oboji).  He also described the natural features, e.g. fishing ponds and vegetation and mentioned the names of their boundary men.  

He stated that their ancestor, Onicha, migrated from Benin with his brothers, Ikirike and Ngulu (or Nguru) and settled at Ike-Onicha. He gave evidence of acts of ownership exercised on the land by his ancestors. He also gave the names of some Jujus installed on the land by them.  Regarding the location of the Defendants, the 1st Plaintiff said:-     “The people of Umuchimen were far away and after the Atu, there is a bush before one gets to Umuchime Village. The bush land is owned by Umuchime people.”             Atu is an important landmark which featured prominently in this case.  It is a grassland which is always flooded and according to the Plaintiffs, it is the boundary between the Plaintiffs and Defendants; the Plaintiffs land being north of Atu and the defendnats land being south.