Okoludo Chibuzo & Ors Vs David Okoye & Ors (1973)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C 

In the claim before the Onitsha High Court in suit No.0/55/63, the plaintiffs claimed against the 1st defendant (Okoludo Chibuzo) alone the sum of 600pounds as damages for trespass committed on the “plaintiffs piece and parcel of land known as and called Iguene situate at Nkwelle Ogidi. “They also asked the court for a “perpetual injunction to restrain the defendant, his servants and/or agents from further trespass on the said land.”

After pleadings had been ordered and the plaintiffs had filed their statement of claim on 24th August, 1963, the second, third, fourth and fifth defendants successfully applied to the court on 5th November, 1963, for an order for them to be joined as defendants and also for all five of them to defend the action “for themselves and on behalf of the people of Ikenga Quarter of Ogidi Town in Onitsha Division.” Paragraphs 2 and 3 of the affidavit sworn to by one Dennis Okocha in support of the application read:-

“2. That at a meeting of important members and elders of the said Ikenga Quarter of Ogidi which I attended, we were shown a copy of the plaintiff’s plan in the above suit.

3. That the land in dispute shown in the aforesaid plan is the communal property of the Ikenga Quarter of Ogidi from time immemorial.”

Thereafter, the five defendants filed their joint statement of defence on 11th January, 1964. Paragraph 7 of the said statement of defence reads –

“7. The defendants from time immemorial have been in undisputed and exclusive ownership and possession of their Igwene land without let or hindrance from anyone whatever. As owners as aforesaid, the defendants and before them their ancestors have exercised maximum rights of ownership and possession over the land in dispute by establishing their village thereon, living thereon with their families, having their Oye Market thereon, reaping all manner of economic crops including palm trees, coconut trees, pear trees, mango trees etc. without let or hindrance from anyone. The defendants also cultivate the land with diverse crops including yams, cassava and coco-yams and serve their ‘Akpu Agadinwanyi’ juju on the land.”

After receiving the statement of defence, the plaintiffs, with the leave of the court, amended their writ of summons, statement of claim, and plan. The new writ of summons reads –

“1. Declaration of title to the piece or parcel of land known as and called “Igwene’ situate at Nkwelle Ogidi in Onitsha Division within the jurisdiction of this honourable court.

2. 600 pounds damages for trespass on the aforesaid plaintiffs’ piece or parcel of land.
3. Perpetual injunction to restrain the defendants by themselves, their servants, agents and/or otherwise from committing further acts of trespass on the aforesaid piece of land.”

Paragraphs 3, 4, 5, 6, 7, 8 and 9 of the amended statement of claim read –

“3. The plaintiffs’ village was and is the owner and occupier of a piece and parcel of land known as and called Iguene Land situate at Nkwelle Ogidi within the jurisdiction and clearly edged green on the plan No. JJ50/64 filed by the plaintiffs in this action.

4. The said Iguene land is one of the several pieces of land, namely Omalacha, Mbako, Uguoji, Wanaga, Uguwangu and Onunu Ogu, over which the plaintiffs had disputed with Azu Ogbunike represented by one Timothy Ejiofo in suits Nos. 1/1930 and 10/30.
5. On the 19th February, 1934, the Divisional Court of the Western Division which sat at Onitsha declared title over the several pieces of land mentioned in paragraph 4 including the Iguene land in favour of the plaintiffs and the judgment was upheld by the West African Court of Appeal on the 19th November, 1934. The judgments will be founded upon at the date of trial. In the suit one Nwannumu Agulefo, the second defendant’s father gave evidence that the several pieces of land belonged to the plaintiffs while one Mosie in his evidence said the lands belonged to Azu Ogbunike.
6. Thereafter the plaintiff have been in exclusive possession of the said various pieces of land including Iguene, the land now in dispute.
7. In 1963, the first defendant broke and entered the land in dispute, erected a house and planted some crops therein. The area of trespass is verged violet on the plan.
8. The plaintiffs sued the first defendant for this wrongful act of trespass and the other defendants sought the order of the court to be joined as co-defendants representing their village, Ikenga Ogidi and they were according joined. They also claimed title over the land in dispute.
9. The plaintiffs as owners in possession have exercised from time immemorial maximum acts of ownership over the land including farming on the land; taking fire wood and cutting trees from it, letting the land to tenants including people from the defendants’ village and various other acts of ownership without any let or hindrance from anyone including the defendants.”

Notwithstanding the facts deposed to in their affidavit when the 2nd to the 5th defendants applied to be joined as defendants, the amendment by the plaintiffs to their writ of summons, not to mention the averments in their statement of claim, the defendants did not deem it fit to counter-claim for title. Instead they averred in paragraph 3 of their amended statement of defence as follows :-

“3. The defendants vigorously deny paragraph 3 of the amended statement of claim and will put the plaintiffs to the strictest proof thereof. The land in dispute which is known as and called ‘Igwene’ land is the property of the defendants’ people of Ikenga Ogidi from time beyond human memory and is more particularly and accurately delineated on the defendants’ plan No. EC.191/63 filed with this amended statement of defence and therein verged blue. The portion of Igwene land now in dispute is verged pink on the defendants’ plan aforesaid.”

In answer to the averments in paragraphs 4 and 5 of the amended statement of claim, the defendants admitted that there was a land dispute between the plaintiffs’ people and the people of Azu Ogbunike in suits No. 1/1930 and No. 10/1930 but averred further that the plaintiffs had not stated the true position vis-a-vis the defendants in relation to the case and to the survey plan used in the case. They then averred that during the land dispute, the plaintiffs caused a plan to be made in 1925 in which they included parcels of land belonging to the defendants, and that the defendants protested and threatened to take immediate steps to protect their interests. They further averred that, as a result of this protest, both parties (that is, the plaintiffs’ people and the defendants’ people) entered into an agreement to the effect that the plaintiffs’ survey plan of 1925 and the boundary claimed therein did not interfere with the old traditional boundary between Ikwenga Ogidi; that the said survey plan did not affect the ownership of Ikenga land; and that if in future there was a land dispute between them it should be settled in the traditional way of juju swearing. They denied the averments in paragraphs 6 and 9 of the amended statement of claim and averred further that they have been owners in possession from time immemorial of the land shown on their plan. As for the complaint against the 1st defendant, they asserted that he built on the land in dispute as a member of the defendants’ village and as owner of the disputed land.

At the trial, the 1st P1/W (Gabriel Enweoneu) testified in support of the averments in their amended statement of claim. He tendered the judgment in Suits No. 1/1930 and 10/30, which started in 1925, as Exhibit “B”. He explained that the defendants knew of that case and that one of their relations named Mozie gave evidence for the people of Azu Ogbunike while another relation (Nwannumu Agulefo) gave evidence for the plaintiffs’ people. He also produced the copy of the plan (Ex. C) used in the case. He then testified as to the acts of ownership performed by them on the land as follows :-

“We plant yams on all the pieces of land including Iguene. We plant cassava on them and we collect palm fruits on the land. We have also tenants on the land. We have also people of Ikenga who are related to the defendants as our tenants. We have also some Ogidi Ani people as our tenants. We gave land to the people for living purposes. I mean the people of Ikenga and Ogidi Ani who live on the land in dispute but we farm all the land around their homesteads.

About three years ago Okoludo Chibuzo the first defendant on record went on the land in dispute and made a farm and started to build on it without our permission. We then brought this action against him. The other Ikenga people including those to whom we gave the land to live said they were going to defend the suit on behalf of Ikenga people.”

When cross-examined about the agreement made by his people with the Ikenga people, he replied –

“We made an agreement with the defendants during the 1925 case but it is not correct that Ikenga Ogidi owned a portion of the land then in dispute. The agreement was in relation to land. It was not in relation to the land shown in our plan in the 1925 case. The agreement was made in 1926. …….. The agreement was in respect of the land where their homestead is for we showed to the Ikenga Ogidi people the place where they live. When we were having our dispute with Azu Ogunike, the people of Ikenga Ogidi feared that we would drive them away after the case so they asked that we should make an agreement with them.

We surveyed the land in 1925 for our case with Azu Ogbunike but we made the agreement with the defendants in 1926

It is not because we showed Ikenga Ogidi as having boundary with us in Ex. “C” that we made an agreement for 1926 with them.’

Finally, the 1st P1/W explained what they do on the land in dispute as follows :-

“We do not live on the land in dispute. Some Ikenga Ogidi people live on the land in dispute but we gave it to them to live upon. The defendants live there but they do not farm on it. We farm the land right around their houses.”

The person who prepared the 1926 agreement is Rev. Francis Mbeledeogwu (5th P1/W). In his testimony, he stated that the area of land to which the agreement (Ex. F) dated 7th January, 1926, referred is far away from Igwene and that it would not be correct to say that the said land touched Iguene. He then explained the reason for the agreement as follows :-

“In 1926 the people of Ekwelle cut a track for surveying all their lands. It was then that Ikenga Ogidi objected that the track cut through some of their lands hence the agreement Ex. “F” was made. The survey was not carried out. I do not know why the survey was not carried out. The boundary track was made before the agreement.”

The contents of the agreement (Ex. F) reads :-

“Agreement Form

Ikenga Ogidi

January 7th 1926. In Joshua Ojechi’s compound

The boundary made by Nkwele Ogidi for surveying the land near Ikenga does not interfere with the old boundary between Ikenga and Nkwele. The old boundary between Ikenga and Nkwele is still as before.

Any Nkwele or Ikenga who has land over this surveying boundary must possess his land wherever it might be. If two of Ikenga and Nkwele have land dispute, they will settle it by one putting idol on the land and one that takes it away will possess the land.

Ozonde Okeke (Ikenga) X

Osogbo Mefugo (Nkwele) X

Agugogbua (Ikenga) X

Okogwu (Nkwele) X

Writer:- Mr. F. I. Mbeledogu.”

The plaintiffs, in further proof of their acts of ownership, called two of their tenants. One of them is Dr. Godwin Izuora (2nd P1/W) who said his late father had a house on the land in dispute and that he told him that he got the land from one Chief Ajechi of Nkwelli Ogidi. Under cross-examination he agreed that the people living around him on the land are Ikenga Ogidi people but said he never asked his father about it. The other person whose father was put on the land by the Nkwelle Ogidi people is Eliezar Ewufo (6th P1/W). He said his father built a house on the land. The house was built about forty years ago and it is still there. His father is now dead but during his life time he was not disturbed on the land by the Ikenga people. Since the death of his father in February, 1965, he has not been disturbed by anybody on the land. The witness was then cross-examined about various persons whose names appear in the defendants’ plan (Ex.K). His answers are as follows:-

“I know Christian Chieze of Ikenga Ogidi and Nwabunwanne Amasiokwu of Ikenga Ogidi. These people are neighbours. We live near each other. I know Richard Echezona my neighbour. He is from Ikenga. It is true that Nkwelle Ogidi gave us the land but it was in those days when land was not of much value and there were hardly any land litigation between people of the same town. My own village is about 21/2 miles away and we came down to live in Iguene land because it was near spring water of Iyienu. I do not know when all my neighbours started living there.”

Another witness, Gilbert Amobi (7th P1/W) testified that he had quarried stone on the land in dispute and that he obtained permission from the Nkwelle Ogidi people to do so on payment of 34pounds annually to them. He further stated that he had been quarrying stones for the last 28 years and that he started from the land in dispute.

The 1st defence witness is Lawrence Agulefo (the 2nd defendant). He testified that the Ikenga people live on the land in dispute, farm there and allow tenants to live and farm there. There are over 200 houses on the land and over 100 people are living there. They reap all the economic trees on the land. They have Oye Market as well as the Akpa Agudi Nwanyi juju there. He said their old boundary with the plaintiffs is the one mentioned in the agreement (Ex. F) and then went on to describe the boundary. He stated that nobody has ever disturbed any of the tenants whom they had put on the land. The 1st D/W then referred to the 1925 case and explained that the dispute in that case was about the boundary between the Nkwelle Ogidi people and Ogbunike people. He then pointed out that – “that boundary touched Nkwelle Ogidi more than any other village of Ogidi.”

He further explained that it was when the Nkwelle Ogidi people wanted to survey the land in the 1925 case that they “cut into” their land. Their objection to this resulted in the agreement (Ex. F). He denied that the agreement does not have anything to do with the plan (Ex. C) tendered in the 1925 case. Under cross-examination he testified further as follows :

“The portion shown on the plan Ex. “E” as the subject of agreement is far from Igwene land. Odida is also far from Igwene land. The rectangular area in Ex. “E” – land subject of agreement – is nearer Odida than Igwene land. Odida is a family at Ikenga. Where Odida people live is the homestead of Ikenga people. Odida and Nkwelli Ogidi have a common boundary. It is an old existing boundary.”

When questioned about the 1925 case, the witness testified further as follows :-

“I agree that the land now in dispute was included in the land disputed in 1930 between the plaintiffs and the Azu Ogbunike people. If the Azu Ogbunike had won the case, I agree we the Ikenga Ogidi would have lost all the three parcels of land shown in our plan Id.3, because they included them in their claim, but we were relying on the agreement Ex. ‘F’.”

In addition to the surveyor (4th D/W) two other witnesses testified for the defendants. The first, one Nwakibie (2nd D/W) a native of Ikenga, testified in support of the testimony of the 1st D/W. After describing their boundary with the plaintiffs he said that his late father, who was on the land before him, did not tell him that anybody put him on the land. He confirmed that the Ikenga people have over 200 houses on the land in dispute. He denied that any Ikenga man living on the land in dispute obtained a grant of it from Nkwelle Ogidi. He had never heard of the 1925 case although he is about 66 years of age and has always lived at home in Igwene. A tenant, Okeke Emesibe (3rd D/W), testified that he obtained his land from the defendants for farming. He has been farming on the land for about 20 years and pays 21/- whenever he farmed there. He cultivates yams, cassava, and maize.

In his judgment, the learned trial Judge considered the scope of the judgment of Graham Paul, J., in the 1925 case (Ex. B) and came to the conclusion, rightly in our view, that as between the parties to that suit the case also determined the ownership of the pieces of land lying between the old and the new Awka Roads as shown in the plan (Ex. C).

Dealing with the Agreement (Ex. F), the trial Judge observed as follows :-

“It came out in evidence that there is another family of Ikenga called Odida; that they are the people living near the home-stead of Ikenga and that they too have an old boundary with the Nkwelle Ogidi but far away from the land in dispute. I have therefore to say that I am not satisfied from the evidence before me that the old boundary referred to in the agreement (Ex. F) is the boundary shown by the defendants on the plan (Ex. K). Even if the agreement referred to any parcel of land disputed in Exhibit ‘A’, I am not satisfied that it refers to the parcel of land now in dispute.”

As for the boundary between the plaintiffs and the defendants, the learned trial Judge observed further in his judgment as follows:-

“I may here mention that the plan Exhibit ‘C’ which was used in the case between Nkwelle Ogidi and Azu Ogbunike clearly showed the boundary between Ikenga Ogidi and Nkwelle Ogidi.”

The learned trial Judge, after considering some of the acts of ownership put forward by the parties, found as follows :-

“I am therefore of the opinion that the evidence of the other people of Ogidi namely P.W.2, P.W.4, P.W.6, and P.W.7 especially that of Izuora and Nwufo lends credibility to the story of the plaintiffs that the land is theirs and that those defendants who live there are their tenants for no explanation can be given as to the fact that the only other Ogidi people who live on the land in dispute among the defendants got land from the plaintiffs and not from the defendants. I may here mention that the evidence of D.W.3 – Okeke Emesibe from Umoji is worthless. He said that he farmed last year on the land in dispute behind the house of Okafor Nwakibie. This no doubt would be in the compounds of Gabriel Amobi and Lawrence Molokwu who live behind Okafor Nwakibie and yet he said he did not know those people.”

The learned trial Judge thereupon granted the plaintiffs the declaration of title to the land in dispute as claimed in their writ. He was, however, of the view that all the defendants, with the exception of the 1st defendant, are, on the plaintiffs’ own admission, the tenants of the plaintiffs. He therefore dismissed the claim against them for trespass. He found the 1st defendant liable in trespass and awarded the plaintiffs the sum 20pounds as damages for trespass against him. On the claim for an injunction, the learned trial Judge stated as follows :

“I have found that besides the 1st defendant all the other Ikenga people living on the land in dispute are the tenants of the plaintiffs. I cannot therefore restrain them from continuing to live in their houses or entering upon the land. I therefore restrain all the other people of Ikenga Ogidi including the 1st defendant from building on the land or farming thereon or in any other way interfering with the ownership of the land by the plaintiffs without the permission of the plaintiffs.”

It is against this judgment that the defendants have now appealed to this court. Eleven grounds of appeal were argued by Chief Fani-Kayode who appeared for the defendants /appellants. All these grounds, in spite of the various authorities to which we were referred, deal with the evidence adduced and the findings of fact made by the learned trial Judge. Having considered the submissions of the learned Counsel for the defendants/appellants, we are of the view that both the evidence adduced and the documents tendered at the hearing amply justified the findings of the learned trial Judge.

We have seen the boundary between the Ikenga Ogidi people (the defendants/appellants) and the people of Nkwelli Ogidi (the plaintiffs/respondents) on the western side of the survey plan No. JO.1/29 (Ex.C) admitted in evidence in the 1925 case which was later retried by Graham-Paul, J., as suit No. 1 of 1930. We have also seen the plan No. JJ.50/64 (Ex. E) tendered by the plaintiffs/respondents in the instant case, showing the location of the land which was the subject of the Agreement of 7th January, 1926 (Ex. F). In view of the contents of Exhibit “F’ which showed clearly that the parties to the agreement were not thinking of the survey plan Exhibit “C”, but had a different survey plan in contemplation, we are in agreement with the learned trial Judge that the “old boundary between Ikenga and Nkwele” referred to in Exhibit “F” is not the same as the common boundary which they both have on the west in the survey plan (Ex. C).

Chief Fani-Kayode submitted that the learned trial Judge was in error in observing that the defendants/appellants did not apply to be joined in the 1925 case. We do not think he was. Having admitted that they knew of the land in dispute in the 1925 case, it seems to us reasonable for the learned trial Judge to infer that if the defendants/appellants had not agreed with their western boundary with the plaintiffs/respondents as shown in Ex. “C”, they would certainly have asked to be joined, particularly as they had appeared, judging by the contents of the Agreement (Ex. F), to have been commendably vigilant with respect to the other boundary which they have with the plaintiffs/respondents.

Chief Fani-Kayode, in the course of his argument, also contended that the statement of Mr. Duncan, the Assistant District Officer who reviewed the judgment of the Ogidi Native Court in suit No. 7/52 on 13th June, 1952, supports the defendants/appellants’ case. The statement made by the A.D.O. when considering the scope of the judgment of Graham-Paul, J., in suit 1/30 reads –

“The Court did not award a declaration of title to any land but only fixed Ogidi’s boundary with Ogbunike.”

This statement, to our mind, is not a finding. Indeed, it is no more than the interpretation which the A.D.O., erroneously in our view, put on that judgment. In this connection, we wish to recall the following observation of Graham-Paul, J., in the 1925 case (Ex. “B”)-

“The suit is therefore on the face of it a very simple ordinary dispute upon the decision of which depends the ownership of the strip of land between the old and the new roads. The plaintiff values this strip at 200pounds.”

After considering the evidence, the learned Judge then found as follows:-

“I accordingly give judgment for the plaintiff for the declaration asked namely that the old Akwa Onitsha Road as shown in the plan Exhibit ‘A’ is the boundary between Nkwelli Ogidi land and Ogbunike land. ……..

No injunction or recovery of possession is asked for and it is therefore unnecessary for me to go into the considerations of equity which might or might not operate to prevent enforcement of the plaintiff’s legal rights to recovery or injunction against Azu Ogbunike people who may have built houses on the land during the last twenty years, owing to a mistake of executive officers interpreting a judgment. No doubt these considerations of equity will be fully weighed if and when any judicial tribunal is asked to order recovery of possession or an injunction or other enforcement of the plaintiff’s legal rights under the judgment.”

From the above, it is quite clear that the judgment goes beyond the mere fixing of “Ogidi’s boundary with Ogbunike” and that Mr. Duncan was clearly in error in limiting its scope as he had done in his review.

Having regard to the totality of the evidence adduced and accepted by the learned trial Judge, including that concerning the plaintiffs/respondents’ acts of ownership, such as putting tenants on the land, which he also accepted without equivocation, we have no doubt that he was right in finding for the plaintiffs/respondents as he did.

It is manifest that the present dispute centres around the location of the western boundary shown in the plan (Ex. C) which was tendered as Ex. “A” in the 1925 case. As we have pointed out earlier, that survey plan showed the boundary between the land of the plaintiffs/respondents and that of the defendants/appellants as far back as 1925. At no time, judging by the evidence, have the defendants/Appellants, until the case in hand, disputed this boundary.

The boundary, as shown in Ex. “C”, starts from about six and a half miles from Onitsha along the Onitsha-New Awka Road in the south and goes northwards until it ends at the boundary of the Oze people’s land . This same boundary is shown in the plaintiffs/respondents’ plan (No. JJ.50/64 of 15th December, 1964) admitted as Exhibit “E” in the present case. The defendants/appellants’ plan (No. EC.191/63 of 11/11/63), admitted as Ex. “K”, on the other hand, shows the boundary as starting from the Ant Hill (Ekpu) along the same Onitsha-New Awka road in the south and running parallel with the boundary as claimed by the plaintiffs/respondents, until it reaches the road leading from the Ogidi N.A. Court to Ogbunike in the north.

A close study of all the plans tendered before the learned trial Judge shows clearly that what is in dispute, as was the case in the 1925 case, is the ownership of the land between these two conflicting boundaries. We are in no doubt whatsoever that the learned trial Judge, on the evidence accepted by him, was right in awarding title in the land to the plaintiffs/respondents.

We are, therefore, quite satisfied that there is nothing which could justify our interfering with his conclusions. The appeal against the decision of Kaine, J., in suit No. 0/55/1963 delivered in the Onitsha High Court on 12th December, 1966, is accordingly dismissed with costs to the plaintiffs/respondents assessed at 180 Naira.

---

Other Citation: (1973) LCN/1703(SC)