Onyia Nwagwu Ngwu & Ors. V. Ugwu Onuigbo & Ors. (1999)

LAWGLOBAL HUB Lead Judgment Report

U. ONU, J.S.C

The present two plaintiffs/respondents by a motion on notice dated the 14th day of September and filed in this court on the 15th day of September, 1999, prayed and their prayer was granted, for them to be substituted in place of the four original plaintiffs (now deceased) that initially sued the seven defendants/appellants in a representative capacity. In that suit which was tried by Nwokedi, J. (as he then was) in the High Court of the defunct Anambra State, holden at Enugu, the four original plaintiffs/respondents claimed against the seven defendants/appellants, also in a representative capacity in paragraph 25 of the formers’, Statement of Claim, as follows:-

“25(a) Declaration of title of communal ownership of the pieces and parcels of land known as “AbaIi” and “Osusu” situate at Okwe Amankwo Ngwo, Udi Division within the jurisdiction of this Honourable Court. The said parcels of land are more clearly shown and demarcated in plan No. MEC/752/74 of 13/11/74 attached to this Statement of Claim and verged pink therein.

(b) N500.00 (five hundred naira) being general damages for trespass committed by the defendants in their said lands.

(c) A perpetual injunction restraining the defendants, their servants, agents and/or privies from entering the lands in dispute or in any manner whatsoever interfering or dealing with same without prior consent of the plaintiffs.”

In the ensuing trial where evidence was led on the lines pleaded and after addresses, the learned trial Judge, on 12th May, 1980 following a copious review of evidence and specifically calling on counsel to address him on the desirability or otherwise of a non-suit or dismissal, proceeded to non-suit the respondents. The latter being aggrieved, appealed to the Court of Appeal (hereinafter in the rest of this judgment referred to for short as the court below) which on 14th December, 1987 allowed the appeal granting them all the reliefs prayed for except the claim for injunction. The court below proceeded to hold, inter alia as follows:-

“Thus, the findings of fact by the Judge about P.W.5 and P.W.7 are that these are respectable, reliable, old men, from the area of the disputes whose testimonies he accepted as truthful. And these two stated that the two lands Osusu and Abali belong to the appellants and the respondents who have communal interest in them. The P.W.7 said categorically that the Okwe Uwani people, his own village, have no interest in these two lands, as they of Okwe Uwani, have their own land called Okeagu. Since the judge believed these two old men, P.W.5 and P.W.7. I fail to see how he could have difficulty in believing as a result of their testimonies that Okwe Uwani people have no interest in these two lands, and so there could be no need for joining them as parties in this suit Surely, that conclusion must follow and flow from his acceptance of the evidence of P.W.5 and P.W.7. He did not need to speculate about the status of P.W” In Okwe Uwani Village. Both P.W.5 and P.W.7 said that the two lands Osusu and Abali belong to both appellants and respondents, and this was the only issue between these two parties in dispute. I do not see how a third party must be considered. If the third party wants to fight both these parties in future about these lands, or either of them, it is then in the future action that the issue of Standing By as enunciated in the case of Whtcherley v. Andrews (1871) LR. 2 P & D. 327 will be considered. Reliance on Ekpere & Ors. v. Aforije & Ors. (1972) 1 ANLR 220 again would afford no help in this appeal as long as the only quarrel between the parties is whether or not the appellants and respondents have communal interest in these lands. Where there is clear evidence which the trial judge believed and which established this community of interest in these two lands and in the two contestants. I believe that an order of non-suit does not lie; the declaration asked for ought to have been given. The Ground of Appeal alleging, misdirection in law non-suiting the plaintiffs on the score of non joinder of the Okwe Uwani Village therefore succeeds.”

The defendants/appellants (hereinafter referred to as the appellants simpliciter), being aggrieved by the above decision have appealed to this court upon three grounds and later with leave a fourth ground, attacking the decision.

Only the appellants filed a Brief of argument before the 29th June, 1999, the day we first heard this appeal. We did so upon the appellants’ Brief alone and hence we reserved judgment to 24th September, 1999. This was not to be because before judgment day arrived, learned counsel for the respondents brought the motion referred to in the opening sentences of this judgment firstly, for substituting all four original plaintiffs (then deceased) with the present two respondents and secondly, to extend time for them to file their Brief of argument. After the prayers were accordingly granted as prayed, time was extended to the 4th day of October. 1999, for them to file their Brief of Argument subject to their payment of any outstanding penalties. The appeal was thereupon adjourned a 20th October, 1999, for hearing with N1,000.00 costs to the appellants.

Further, before, the date fixed for the hearing of the appellants’ appeal arrived, namely, 20th October, 1999, learned counsel for the appellants submitted that as on 29/6/99, he had abandoned his application to argue additional grounds of appeal, he was seeking leave to withdraw same while asking to file a Notice of Preliminary Objection. The latter having been withdrawn was accordingly struck out leaving the stage for the consideration of the appeal premised on the issues submitted by the parties in their Briefs of Argument. The two issues we are now called upon by the appellants to determine in this appeal (issue (c) having been abandoned by learned counsel at the hearing on 29th June, 1999) are:-

“(a) Whether the Court of Appeal was right – after the trial court had unquestionably evaluated the evidence, and ordered a non-suit in view of the fact that Okwe Uwani people were not joined, to have disturbed his findings, and held that Okwe Uwani’s interest should not be considered

(b) Whether the Court of Appeal was right not to have considered the concession of Counsel on a non-suit in the trial court, retracted at the Court of Appeal’)”

The respondents in the Brief of Argument I had herein-before alluded to proffered two identical issues to those formulated by the appellants. These Briefs were exchanged by the parties in accordance with the rules of court and in my consideration of them, I propose to adopt the appellants’ as sufficient to dispose of the appeal. But first, the brief facts of the case:-

The respondent’s as plaintiffs in Suit No. E/118/74 in their 25 paragraphs Statement of Claim commenced in the High Court of former East Central State, averred that they – the respondents. the appellants and Okwe Uwani family (the latter being no parties to the suit herein) have a common ancestor called Aguma Aneke, who in his life time did not share his lands (including the land in dispute) among his four sons by his two wives, viz: Omesu, Enwene, Obu and Eze. Further, that the four sons lived together, worshipped common shrines, had a common play ground and a town hall. They alleged that their common ancestors’ lands Abali, Osusu, and “Okeagu” vested in the appellants and respondents and Okwe Uwani family on the death of Aguma Aneke aforesaid. The respondents further averred that Eze was the ancestor of Okwe Uwani and that fifteen years before the institution of the Suit giving rise to the action herein, the Okwe Uwani family in an unnamed Suit (not tendered at the trial concerned) successfully claimed ownership of “Okeagu” land leaving “Osusu” and “Abali” lands in dispute to the respondents and appellants. The respondents finally maintained that despite binding agreements between them to regard and enjoy the said “Abali” and “Osusu” lands in common, the appellants, without their consent in 1966, trespassed on the lands in dispute, by installing boundary beacons thereon thus giving the impression of exclusive ownership of the said lands.