Raphael Udeze & Ors. V. Paul Chidebe & Ors. (1990)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C. 

This is a further appeal by the plaintiffs in this case against the dismissal, by the Court of Appeal, Enugu Division, of their appeal against the decision of Awogu, J. (as he then was) sitting in an Onitsha High Court.

The plaintiffs, as representatives of Azize Nnadi family of Amansi village of Ifite Nteje had, in 1974, that is before the Land Use Act, instituted an action against the 1st and 2nd defendants in their personal capacities. The 1st and 2nd defendants are also from Ezize family of Amansi, called Iruatu. On their own application, the 3rd to 5th defendants, and yet the 5th to 8th defendants, applied to be joined. Before the time the case went to trial the 1st to 5th defendants were given leave to defend the action as representatives of the whole of Ifite Nteje, to which the plaintiffs also claim to belong. The 6th to 8th defendants were also defending the action as representatives of Umunnakwe family of Ifite Nteje but they were asserting exclusive ownership of only “Ula” land, part of the land in dispute as originally shown on plaintiffs’ plan no. E/GA/216/74 filed with their statement of claim. The plaintiffs, however, discontinued their claim to Ula land, filed an amended plan no. P.O./E62/80 (exh. A) and discontinued their claim against the 6th to 8th defendants. By the amendment the plaintiffs limited their claim to “Ude Nnofia” land instead of the whole of “Nneofia” land which they were claiming originally. At the conclusion of the trial, 6th to 8th defendants were struck off the suit. So, they are no parties, as a separate unit, to this appeal.

The case for the plaintiffs in the court of trial, as revealed by their further amended statement of claim dated the 26th day of May, 1980, is that they are the exclusive owners of Ude Nnofia land (hereinafter called the land in dispute), and have owned it from time immemorial, exercising diverse acts of ownership and possession over it. They also averred that the defendants used to farm thereon occasionally as plaintiffs’ tenants and with the permission of the plaintiffs, upon payment of tribute up till 1971 when they (defendants) refused to pay any longer.

On the other hand the case for the defendants, as contained in the amended statement of defence dated the 7th day of January, 1975, is that the whole land in dispute is part of Mba Ohia land, which is a communal land of the entire Ifite Nteje community, who also exercised diverse acts of ownership and possession thereon. The plaintiffs are strangers from Nnadi town, near Nsugbe, but resident at Ifite Nteje. The plaintiffs as strangers, and like their fathers, have been allowed to farm the communal lands of the defendants while radical title resides in the defendants.

They also pleaded an Onitsha native council suit no. 282 of 1914 between one Okongwu of Ifite Nteje and Ibezi, Emenife and Ana ofNnadi over part of Mba Ohia land. As a result of that case in which the people of Ifite Nteje had judgment, the boundary between them and the people of Nnadi was held to be Oyi and Oboko streams. Therefore the defendants pleaded res judicata. They averred that the plaintiffs have no radical title to any land in Ifite Nteje and that the area where they now live was granted to them by Iruatu and Akamalu families of Ifite Nteje.

After trial by Awogu, J. (as he then was) he made a number of important findings of facts:

(i) He found that there is no fixed boundary between Nneofia land which the plaintiffs claimed originally and Ude Nneofia which they now claim by their further amended statement of claim and plan.

(ii) He observed that the case was between the plaintiffs as representatives of Ezize family, which they maintain is a part of Amansi, Ifile Nteje, and they claim as exclusive owners, whereas the defendants claim as communal owners for and on behalf of the whole of Ifite Nteje. He noted that defendants’ claim was supported by some people of Amansi to which the plaintiffs belong.

(iii) For the foregoing reason, he held that, as the plaintiffs were a part of Amansi, there should be evidence as to how they came to be exclusive owners, but that there was not. He noted particularly that there was no evidence in support of their case that they inherited the land in dispute, nor as to the root of the title of Ezize which they alleged they inherited.

(iv) He noted that the averment that 1st and 2nd defendants were customary tenants of the plaintiffs was not proved.

(v) As the native council case, exh. C., settled the boundary between Ifite Nteje and Nnadi, it is clear that the land in dispute was on Nteje side of the boundary. He therefore upheld the plea of res judicata in favour of the defendants.

On appeal to the Court of Appeal Enugu Division, that court, by the lead judgment of Macaulay, J.C.A., with which Katsina-Alu and Oguntade, JJ.C.A. concurred, confirmed all the above conclusions on the facts. That court further noted that there was nothing in the defence case to assist the plaintiffs and that the latter failed to discharge the onus of proof on them.

The plaintiff (hereinafter called the appellants) have appealed further to this court. They filed eight grounds of appeal, running altogether to seven pages of typed script. I do not intend to set them out here, as they have been fully taken into account in the issues for determination, as settled by learned counsel for the parties. According to the learned counsel for the appellants, those issues are: