Onyema Oke & Ors V Amos Eke & Ors (1982)
LawGlobal-Hub Lead Judgment Report
G. IRIKEFE, J.S.C.
The parties in this action are the representatives of three neighbouring village-communities of MBAEZI MBALA, UMUOBASI MBALA AND UMUHU UMUAKU. There are thus two distinct sets of defendants, namely UMUOBASI MBALA AND UMUHU UMUAKU.
The plaint reads:-
“The plaintiffs claim against the defendants jointly and severally as follows:-
(1) A declaration of title of that piece of land called “Imeagu-Mbaezi” situate at Mbaezi, Mbala, Isuochi, Okigwe Division of annual rental value of N10.
(2) N1,000 damages for trespass therein.
(3) Perpetual injunction restraining defendants, their servants and agents from further entry or interference with the said “Imeagwu Mbaezi.” ”
Pleadings having been ordered by the court of trial were duly exchanged between the parties.
In support of their case the plaintiffs, hereinafter referred to as the appellants, rested their case on the following averments in their amended Statement of Claim:-
“(1) The plaintiffs are members of the Mbaezi kindred in Mbala Town of Isuochi clan in Okigwe Division and bring this action for themselves and on behalf of the people of Mbaezi kindred aforesaid.
(2) The first set of defendants, Amos Eke, William Okoro, Isaac Ime and Kabaobi Ibeachu are members of Umuobasi kindred also in Mbala Town of Isuochi clan in Okigwe Division and are sued personally and on behalf of the people of Umuobasi kindred aforesaid.
(3) The second set of defendants, Ebo Akpu, Ikeche Ibe, Umealo Nwobu and Uwe Ume are members of Umuhu kindred in Umuaku Town of Isuochi clan in Okigwe Division and are sued personally and on behalf of the people of Umuhu kindred in Umuaku Town of Isuochi clan.
(4) Both Umuobasi and Umuhu are two kindreds that have lands adjoining those of the plaintiffs.
(5) Both Umuobasi and Ubaezi have a common ancestor called CHARAM and the land in dispute is the plaintiffs’ share inherited from the said common ancestor, traditionally and from time immemorial.
(6) The said land in dispute is bounded on the North by Mmam River, on the West by lands of Umuhu kindred, on the South by other lands of the plaintiffs and on the East by the lands of Umuobasi kindred. The said land in dispute is called “IMEAGU MBAEZI” and is more particularly shown and delineated purple in plan No. L/D377 filed with this statement of claim with all the indicated features and on which the plaintiffs shall rely at the hearing.
(7) As owners in possession, the plaintiffs have from time immemorial been exercising full proprietory right over the said land without interference from any of the defendants or their kindred until recently.
(8) In exercise of that right of ownership, the plaintiffs petitioned the District Officer Okigwe in 1954 against the plans of the now defunct E.R.D.C. when the latter sought to establish a cashew plantation in the plaintiffs’ land, now in dispute. The said petition will be founded upon. The first set of defendants – Umuobasi kindred – however permitted the E.R.D.C. to establish a cashew plantation in their own land.
(9) Again in 1964, some of the first set of defendants damaged some of the plaintiffs’ crops in the said land and were sued in the Mba Abua District Court in SUIT NO.58/64. The defendants paid the plaintiffs the costs of the action and following on arbitration, the plaintiffs withdrew the action.
(12) Then in June 1968, the second set of defendants – the people of Umuhu – complained to the Isuochi Jideoho elders that the plaintiffs had crossed their common boundary and trespassed into the lands of the second set of defendants.
(13) The said Jideoho elders made an exhaustive arbitration, in conclusion of which they found that the complaints of the second set of defendants were unfounded. The Jideoho elders also confirmed the original boundaries between the two kindreds stretching from their villages to “ODUWA” spot and right on to Mmam River, and appealed to the parties to maintain the common boundary. This arbitration will be founded upon.
(14) Yet again, some of the first set of defendants in February 1973 trespassed into the land in dispute and damaged the plaintiffs’ crops, for which they were charged to the Okigwe Magistrate’s Court in Charge No. MOK/57c/73.
(15) Again, the elders intervened and appeared in court and withdrew the charge. They then set up a tripartite body – the land dispute settlement committee of “ISUOCHI DEVELOPMENT COMMITTEE” to settle the dispute again between the three parties – the plaintiffs and the two sets of defendants. Their arbitration dated MAY 1973, which appealed to the parties to maintain the original boundaries will be founded upon.”
As against the above, the 1st set of defendants hereinafter referred to as the 1st respondents in their Statement of Defence averred as follows:-
“(1) The 1st set of defendants admit that plaintiffs are members of Mbaezi kindred but will require proof of their authority to sue as representatives of other members of their kindred.
(2) Paragraphs 2 and 3 of the statement of claim are admitted.
(3) The 1st set of defendants admit that they have boundaries with the plaintiffs on the southern part of the land in dispute and with Umuhu people on the western side. Further to paragraph 4 of the statement of claim the defendants state that the plaintiffs’ land which adjoins defendants’ own land is called “UGBO EBI” and UZOR NWAFOR and sundry ancient boundary trees clearly demarcate the defendants lands and the plaintiffs’ UGBO EBI land.
(4) The 1st set of defendants admit that the two kindreds of UMUOBASI and Mbaezi have CHARAM as their common ancestor but deny that the land in dispute is the plaintiffs’ share of CHARAM’s lands. Rather the land in dispute comprising UZOR NWAFOR, UGWU OBENTA, UGWU OBEUKWU and IMEAGWU are part of defendants’ share of CHARAM’s land. The plaintiffs have their own share, part of which is called UGBO-EBI.
(5) The 1st set of defendants deny paragraph 6 of the statement of claim. The plaintiffs’ plan did not show the correct features of the land in dispute.
(6) Further to paragraph 6 of the plaintiffs’ statement of claim the 1st set of defendants state that the true features of the land in dispute are shown in the defendants’ plan No. UND/16/73 which is hereby filed with the statement of defence and pleaded.
(7) Paragraph 7 of the statement of claim is categorically denied. The plaintiffs at no time owned or had any proprietory right over the land they now claim.
(8) Paragraph 8 of the statement of claim is not true. The plaintiffs were granted farming rights only over the portions of the land in dispute known as UZOR NWAFOR on payment of customary tolls. The UZOR NWAFOR land is verged violet in the defendants’ plan afore-pleaded.
(9) In further answer to paragraph 8 of the plaintiffs’ statement of claim, the 1st set of defendants state that they in 1953 granted part of their land near the Mmam River to the then Eastern Nigeria Development Corporation for Cashew Plantation.
(10) The 1st set of defendants admit paragraph 15 of the plaintiffs’ statement of claim. The parties were to maintain the original boundaries as found by the arbitrators.”
Similarly, the 2nd set of defendants, hereinafter referred to as the second respondents, in their Statement of Defence averred as follows:-
“(3) The 2nd set of defendants admit only that the named plaintiffs are people of Mbaezi and require proof of their authority to represent other members of Mbaezi kindred.
(4) The 2nd set of defendants admit paragraphs 2 and 3 of the statement of claim.
(5) In answer to paragraph 4 of the plaintiffs’ statement of claim the 2nd set of defendants admit that they have boundaries with the plaintiffs on the south of the land in dispute and on the eastern side with the 1st set of defendants.
(7) The 2nd set of defendants deny paragraph 6 of the statement of claim and state that the correct name of the land in dispute is OZUAGU UMUHU land which correct features are depicted in the SURVEY PLAN NO. OKE/D14/73 filed with this statement of defence and pleaded.
(11) The 2nd set of defendants deny paragraph 13 of the statement of claim in so far as it avers that the Isuochi Jideofor found the complaint of the defendants unfounded. The elders found ODUBA to be the boundary between the lands of 2nd set of defendants on the west and the 1st set of defendants on the east.”
After taking evidence from the parties and their witnesses, the learned trial Judge (IKWECHEGH, J.), recorded a decision in which he upheld all the claims of the appellants. The respondents appealed against this decision to the Federal Court of Appeal, which court, in a unanimous judgment, allowed the appeal, set aside the earlier judgment of the court of trial and remitted the case to the High Court of Imo State (Okigwe Judicial Division) for a retrial before another judge. The Court of Appeal also ordered that the parties herein were to be at liberty to amend their pleadings and to file new plans before the retrial if they so desired.
The appellants, who were the successful parties in the court of first instance, have now appealed to this court on a number of grounds.
The issues raised in the said grounds of appeal are substantially of fact although presented as matters of mixed law and fact. There is also a general ground on fact standing alone. The said grounds may be summarised thus:-
(a) That the learned trial Judge erred in assuming that Exhibit “F” (the Jideoho arbitration proceedings of 1968) supported the appellants’ case on the issue of boundary vis-a-vis the appellants and the 2nd respondents, when the said document, did not do so.
(b) That the learned trial Judge erred in admitting Exhibit “F” in evidence even though the records shows that the said document was admitted with the consent of all the parties.
(c) That the decision is against the weight of evidence.
The appellants do not appear to have sought the leave of this court or of the Federal Court of Appeal to enable them rely on the grounds filed. Such leave is required having regard to the mandatory provisions of Sections 213(2) and 213(3) of the Nigerian Constitution (1979). See also per Eso, JSC., in Akpasubi v. Unweni – SC. 9/1982 (as yet unreported). On this ground alone this appeal would appear to be incompetent and should fail.
Having, however, read the brief filed on behalf of the appellants by their learned counsel, Lardner, SAN., who also advanced oral argument in support of the brief, I shall now proceed to deal with the merit of the appeal.
The totality of the evidence before the court of trial based on the pleadings shows that the land area occupied by each of the three village-communities in this case shares contiguity. The existence of the three villages from time out of human memory is an established fact. What the appellants sought to determine by this action was a precise definition of the boundary of their land vis-a-vis that of the 1st respondents on the one hand and the 2nd respondents on the other. As regards the appellants and the 1st respondents, it is common ground that each community is descended from a common ancestor, CHARAM, who begot two sons, namely OBASI the elder brother who begat the 1st respondents and EZI the younger brother who begat the appellants. It was also admitted as between these two parties that the land area occupied by them represents what each son got when CHARAM’s land was shared by his two sons when he died. The two communities only disagree on how the actual sharing was done. The appellants maintain that it was done from a point referred to in the evidence as ODUBA or ODUWA and due north to the MMAN River, that is a sharing from South to North or longitudinally as it was described by the learned trial Judge. The 1st respondents, however, maintain that the sharing was done from East to West that is, latitudinally – leaving the appellants’ land at the bottom and, consequently, without access to the MMAN RIVER. This picture is clear from the three plans filed by the parties. What the 1st and 2nd respondents sought to establish was that they had a common boundary running from ODUBA to the bank of the MMAM RIVER. The appellants on their part were prepared to concede that their own land stood in the middle with access to MMAM RIVER while the land of the 1st and 2nd respondents stood to the east and west of theirs, but each with access to MMAM RIVER. In other words according to the appellants, if the three lands were designated as A B and C in that order, the 2nd respondents’ land would be A and it would terminate on the bank of MMAM RIVER while the land of the appellants would be B, terminating in like manner and that of the 1st respondents would be C.
It was clear, therefore, that the onus was on the appellants to establish by credible evidence a precise boundary between them and the respondents. P.W.3 – OKPARAWUEZE EBORO who described himself as the chairman of Ejiofor at Isuochi testified as follows:-
“We visited the land with the Umuhu and Mbaezi people and we arrived at the ODUBA, this is an old boundary mark at which peace was made after a war. Ebo traced to boundary from this ODUBA to Mmam and showed his boundary with Mbaezi………. The Ejiofor people decided that the boundary between Umuhu and Mbaezi ran from Oduba to Mman………. and we decided that each of Umuhu and Mbaezi, should respect this boundary, and work only up to it on each side……………We decided that Oduba was the boundary between Mbala and Umuaka. They told us of the land called Imeagu. We didn’t decide that the land from Imeagu to Mmam river belongs to Umuobasi. We decided that from Oduba area to Mmam, one side belongs to Umuobasi and the other side of the same area belongs to Mbaezi. Also that the land from Oduba to Mmam on a third axis belongs to Umuhu.”
The Court of Appeal was of the opinion, rightly, in my view, that the appellants had failed to prove with certainty their boundary with the respondents. A long line of authorities have established that a plaintiff seeking a declaration of title to a piece or parcel of land must be able to prove its identity with certainty. The test laid down in Kwadzo v. Adjei – 10 WACA (1944) p.274 still holds good today. In that case the court stated as follows:-
“The acid test is whether a surveyor, taking the record could produce a plan showing accurately the land to which title has been given.” See also Udofia v. Afia – 6 WACA (1940) p.216 and Okorie v. Udom – 5 F.S.C. (1960) p. 162.
The evidence in this case shows that in 1968, the Jideofor, a committee of elders of the Isuochi clan where the land in dispute is situate, enquired into the boundary dispute between the appellants and the 2nd respondents. The proceedings and conclusions of this enquiry were admitted as Exhibit “F” in this case, by consent, through the secretary to the tribunal P.W.5 FRANCIS ONWUESIE. The learned trial Judge, regrettably, took the view that this document, Exhibit “F” supported the appellants’ case on their boundary with the 2nd respondents. I am unable to read any such meaning into this document. All it shows is that the two parties share a common boundary and have done so from time immemorial from ODUBA and beyond to Mmam River. It also shows that the appellants have another separate boundary with the 1st respondents. What the boundary features are, the document did not say. Indeed the document ended on this note – “We urged both parties to cultivate on their separate areas as existed from time immemorial, but promised to define the boundary if necessary.” (Emphasis mine.)
There was no evidence before the court of trial that this definition was ever effected.
A similar dispute in 1973, this time between the appellants and the 1st respondents had no definite result; the parties being enjoined to work up to the age-old boundary. What this was, non of the parties was any the wiser at the conclusion of evidence. It seems to me that the greatest flaw in the case of the appellants was the evidence tendered by them in proof of their boundary. There was a glaring inconsistency in the testimony on the boundary and this, regrettably, was not resolved by the learned trial Judge at the end of the case. A few instances will suffice. The 1st plaintiff, Onyema Oke, one of those who visited the land twice with the Jideofor Commission of Inquiry (Exhibit F) and also one of those who took the surveyor in this case over the disputed land testified thus:-
“The Oduba is the common boundary between Umuaka and Mbala. This Oduba is a single tree. Standing at the Oduba and looking towards the Mmam river, there is not a chain of hills running right down to the river. (Emphasis mine.) The land is flat from Oduba to the river. Ugwu in our dialect means a hill, or elevated mass of land. Ugwu Agu is lying on the way as one goes from Oduba to Mmam, both Ugwu Agu Ukwu and Ugwu Agu Nta. Oduba signifies the spot at which Umuaka and Mbala made peace at the end of their warring. The Oduba and the hills do not form the natural boundary between Umuaku and Mbala.”
Still on the boundary, the appellants’ surveyor, the first witness, testified as follows:-
“Standing at this Oduba and looking towards Mmam River there is a rise of ground, I won’t describe it as a chain of hills.” A close inspection of Exhibit “A” (the appellants’ plan) reveals that there are three areas shown and described as “Portion called Ugwu Agu Nta being Elevated Land” and “Portion called Ugwu Agu Ukwu Being Elevated Land.”
Again, the 2nd plaintiff testified thus:-
“Standing at the Oduba and looking towards Mmam River, one sees a high hill, and a smaller one.
On the same issue, the 1st respondent, Amos Eke deposed thus:-
“There is a series of hills – Uguwu Obe Ugwu and Ugwu Obenta and Ugwuobe Mmamg which runs right on to the Mmam River.”
D.W.1, Boniface Uzodinma Nwokeleme, the surveyor who made the 1st respondents’ plan testified as follows:-
“I visited the land personally and noted the features shown on the plan. The people whose farms are shown on the plan were thereon in person to show me their farms. I indicated a chain of hills. I saw these hills.” (Emphasis mine.)
From the foregoing, it is manifest that the parties joined issue on the existence of these hills along the alleged boundary in either direction from Oduba. But having regard to the evidence of the 1st appellant (Onyema Oke), can it be asserted with confidence that these various witnesses were testifying about the same thing
The learned trial Judge failed to make an express finding on this conflict and I would wish to adopt the language of this court in Okoye v. Kpajie (1973) NMLR page 84 where it was said –
“With respect, learned counsel for respondents must appreciate that where conflicting evidence was adduced in a court of trial, and the learned trial Judge who heard and saw the witnesses failed to resolve the conflict, it is impossible for an appeal court to make findings in such a situation.”
See also Fashanu v. Adekoya (1974) 6 S.C. p. 83, where Coker, J.S.C., delivering the judgment of this court stated as follows:-
“The appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of a tribunal of trial and a Court of Appeal would only interfere with the performance of that exercise if the trial court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn wrong conclusions from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support.”
See also Woluchem v. Gudi (1981) 5 S.C. p. 291 and Board of Customs & Excise v. Barau S.C. 39/82.
As proof of a precise boundary was crucial to the success of the appellants’ case, it seems to me that the learned trial Judge erred in failing to resolve the conflicting evidence on the features along the purported boundary and also in assuming on the available evidence that the appellants’ boundaries had been satisfactorily established. It is noteworthy that both in his brief and the argument before us, learned counsel representing the appellants refrained from commenting on the conflict arising from the testimony on the boundary.
We took the view that this appeal lacked substance and so we did not call upon Chike Ofodile, SAN., learned counsel representing the respondents.
Accordingly, I would dismiss this appeal, and do so with N300 costs in favour of the respondents collectively. The order for a retrial before another judge with liberty in the parties to amend their pleadings and also to produce new plans if so desired of the disputed land clearly demarcating their boundary marks made by the Court of Appeal on 27th February, 1981 is hereby affirmed.M. BELLO, J.S.C.: I had the opportunity of reading in draft the judgment of my learned brother, Irikefe, J.S.C. I agree the appeal has no merit and it should be dismissed. The order for a retrial before another judge made by the Federal Court of Appeal is hereby affirmed. I endorse the order as to costs made by Irikefe, J.S.C.
Other Citation: (1982) LCN/2149(SC)