Okori Nwaezema & Ors. V. Obeta Nwaiyeke & Ors. (1990)

LawGlobal-Hub Lead Judgment Report

AGBAJE, J.S.C. 

I allowed the appellant’s appeal summarily on 19/2/90 and remitted the case to the Anambra State High Court for a retrial. I indicated then that I would give reasons for my judgment today. I now proceed to do so.

This appeal is concerned with a consolidated action. The two suits consolidated were suits E/120/71 and E/55/72. The plaintiffs in suit E/120/71 were the defendants in suit E/55/72 whilst the defendants in suit E/120/71 were the plaintiffs in suit E/55/72. The order for consolidation was in the following terms:-

“Suits E/120/71 and E/55/72 are hereby consolidated. The plaintiffs in E/120/71 will be plaintiffs in the consolidated suit and the defendants in E/120/71 will be the defendants in the consolidated suit.”

The plaintiffs claim as plaintiffs in suit E/120/71 at the High Court was as follows:-

“1 . For a declaration of title or ownership to that piece or parcel of land known and called “Amagu Nkulishi situate at Okpuje and in Nsukka province which is more clearly shown and delineated pink in Plan No. MEC/262/71 filed in this suit.

2. For a declaration that defendants under native law and custom forfeit their right of occupation of the said land.
3. (N280) 3140 being arrears of rent in respect of the said land.
4. A perpetual injunction restraining the defendants, their agents and privies from ever entering into the said plaintiffs land or interfering in any way whatsoever with the plaintiffs’ right and/or possession of the same.”

The claims were predicated essentially on the following averments in the plaintiff’s amended statement of claim:

“4. The said piece of land has been in the ownership and possession of the plaintiffs from time beyond human memory.

5. As such owners in possession the plaintiffs farmed the land, enjoyed the economic crops thereon and let portions of same to farm tenants who paid tribute to the plaintiffs.
6. The defendants who are immigrants were first permitted to enter the land in dispute less than 25 years ago. They settled in the area verged blue in the plan referred to above on the following conditions:-

(a) To pay the annual tribute.

(b) Not to live outside the area verged blue without the permission of the plaintiffs.

(c) Not to allow others except the people of Amadim Ogo Edem to farm on the land without the permission of the plaintiffs.

These averments were denied by the defendants in their amended statement of defence who besides these denials alleged therein as follows:

“5. The said land in dispute has been from time immemorial the property of the defendants, and so owned from their forefathers, to their fathers before them.

6. As the owners in possession, the defendants have been exercising maximum acts of ownership, such as:-

(a) Having their permanent settlements, buildings and homes in the land in dispute, from time beyond human memory.