Okpala Ezeokonkwo V. Nwafor Okeke (2002)

LAWGLOBAL HUB Lead Judgment Report

I. IGUH, J.S.C. 

By a writ of summons issued on the 15th day of August, 1973, at the High Court of Justice of the now defunct East Central State of Nigeria, Amawbia Awka Judicial Division, the plaintiffs, for themselves and on behalf of the Umu-Muora family of Eziagu village, Aguluezechukwu instituted an action against the defendants jointly and severally, for themselves and on behalf of the Umu-Ohuekwe family of Eziagu, Aguluezechukwu claiming as follows:

“(1) Declaration of title to all that piece of land called “Ani Owele” situate in Aguluezechukwu.

(2) N100.00 damages for trespass.

(3) Injunction restraining the defendants, their servants, and/or agents from further trespass on the plaintiffs “Ani Owele” land.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

The case accordingly proceeded to trial and the parties testified on their own behalf and called witnesses. Each side led evidence which showed that it relied on traditional history, acts of ownership and long possession and presumptions based on the provisions of sections 46 and 146 of the evidence act to establish its claim of title to the land in dispute.

From the amended statement of claim, the plaintiffs asserted their ownership of the land in dispute from time immemorial. In particular, paragraphs 4, 5, 6 and 7 thereof aver as follows:

“4. The land in dispute has been the property of the plaintiffs’ family from time immemorial. The plaintiffs and their ancestors before them have exercised maximum acts of ownership over the said land in dispute without let or hindrance. Plaintiffs farm the land reap the fruits of the economic trees and also live on the land.

5. Plaintiffs’ village, Eziagu, consists of two sub-divisions, namely, Eziagu Uhuala and Eziagu Ngbago. The plaintiffs belong to Eziagu Uhuala section and are the head of all the families that make up Eziagu Uhuala. The plaintiffs’ family acquired the land in dispute as their own share when the families that make up Eziagu Uhuala shared their land according to custom many generations ago.
6. North of the land in dispute is a portion of plaintiffs’ land granted to one Nkwonwe, 3rd defendant’s grandfather, by plaintiffs’ ancestor called Muora. Nkonwe lived on the land and some of his descendants still live on the land as a result of grant from plaintiffs’ family.
7. In 1931 one Okeke Ibeanu, the 1st defendants’ father trespassed on the plaintiffs “Ani Owele” land and was promptly sued to court by one Ezeokonkwo, the 1st plaintiffs’ father, claiming possession and damages for trespass at the Mbamisi native court in case no. 181/31 and Ezeokonkwo obtained judgment. One Oraenyem, who was 3rd defendant’s father, testified for the plaintiff in the case. The judgment in this case will be founded upon by the plaintiffs.”

The above averments were stoutly denied in paragraphs 5, 6, 7, 8, 10, 11 and 12 of the amended statement of defence in which it was pleaded as follows:

“5. Paragraph 4 of the amended statement of claim is emphatically denied. The defendants, and before them their ancestors, are the owners in possession of the entire Ohuekwe family land and which includes the land presently in dispute.

6. The defendants, and before them their ancestors, have been exercising maximum acts of ownership over the entire “Ani Umuchuekwe” such as by reaping all manner of economic crops on the land, putting tenants on the land and worshipping jujus on the said land without any hindrance and/or interference from anybody whatever including the plaintiffs and their people.
7. Save that the defendants admit that Eziagu consists of Uhuala and Ngbago and that plaintiffs by accepted habit identified themselves with the Uhuala Eziagu, the defendants deny other statements in paragraph 5 of amended statement of claim. In further answer to this paragraph, the defendants aver that one Chigbo, the plaintiffs grandfather, came from Adazi and settled at Nkwo Aguluezechukwu. Later on and on request the Umu-Ohuekwe showed Chigbo a place at Isigwuapani to build a house. There, he lived and got a son by name Muora who in turn got Ezeokonkwo and Ezeobi. Where Chigbo lived is shown in defendants’ plan as “Muora’s land”. The plaintiffs till date worship their juju in that place. They do not take part in Umuezenwa customary performances.
8. About the influenza period, Abunike, a member of defendant’s family of Umu-Ohuekwe died and Muora became friendly with Abunike’s wife by name Mgbeke. As a result of their friendship Muora moved to Abunike’s house and started living with Mgbeke who by then had only one sickly female issue that later died.
9. …….
10. The defendants deny paragraph 6 of the amended statement of claim and will put the plaintiffs to the strictest proof. The land north of the land in dispute belongs absolutely to the defendants and, before them, their ancestors. The defendants and their ancestors have exercised maximum acts of ownership over the said land. In 1952 the defendants fell and sawed one iroko tree on this part of their land. In 1964, the 3rd defendant was prosecuted by the health office Aguata in charge no. 66c/64 for failing to abate nuisance on this land. Also in 1965, in charge no. 7c/65, the 3rd defendant together with 3 others were again prosecuted for not complying with abatement notice in respect of this land.
11. In further answer to paragraph 6 of the amended statement of claim, the defendants aver that members of their family own houses not only north of the land in dispute but all over the Umu-ohuekwe land.
12. In answer to paragraph 7 of the statement of claim, the defendants aver that suit no. 181/31 did not at all concern the land now in dispute. The judgment in that case was not final and was in any event res inter alios acta. The extent of Ani Isigwu-apani which the defendants aver was involved in that case is vague and cannot be determined.”

At the conclusion of hearing the learned trial Judge, Uyanna, J., as he then was, after a close review of the evidence on the 29th day of June, 1987 found for the defendants and dismissed the plaintiffs’ claims. On the issue of the plaintiffs’ traditional evidence, it was the view of the learned trial Judge that the same was not only weakened by material contradictions but that it was also not credible.

He said:

“Quite apart from the conflict in the evidence of the plaintiffs as regards who the original ancestor was, there was equally strange contradiction between PW1 and PW3 as to who gave the land in dispute to ancestors of the defendants. While the PW1 gave in evidence as pleaded by the plaintiffs that the land north of the land in dispute was given to Nkwonwe, ancestor of the 3rd defendant, by Muora, PW3 testified it was Ezeokonkwo who gave it to Ezeokoye and llobulum. And PW2 in one breath said it was Muora and yet in another breath said something else as to who gave the land to the defendants….It should be clear to the court what case a party is stating, and clearer still that it is the case that he has stated that he is proving,”