Silas Okoye & Ors Vs Chief Agbogbua Kpajie & Ors (1972)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, J.S.C. 

This is an appeal against the judgment of Kaine, J., in which he awarded 5 pounds damages for trespass and injunction against the appellants. The plaintiffs averred in their statement of claim as follows; that they have been living and farming on the land as owners of the land in dispute; that they have several dwelling houses on the land as well as some juju shrines; that in the exercise of their right of ownership they had let out certain portions of the land in dispute to tenants; that there had been several court cases between the parties between 1921 and 1961 and these confirmed their (Plaintiffs) ownership of the land; that the defendants trespassed on the land in 1955 and damaged some of the plaintiffs’ property on the land as a result of which suit No. 0/12/57 was brought against the Umusiome people (defendants in this case) and twelve others in the Onitsha High Court and judgment was entered against the Umusiome and twelve (12) other defendants; that on appeal to the Federal Supreme Court, in Appeal No. FSC/206/60, the court in dismissing the appeal held “that the reference to Umusiome quarter should be omitted”

And the judgment of the Onitsha High Court was varied to that extent; that the present defendants misconstrued the Federal Supreme Court judgment as awarding title of the land in dispute to them and therefore entered on the land and “collectively jumped on the land in dispute and started to cultivate crops, build thereon and to cut down some economic trees without the consent of Plaintiffs. This last averment was the immediate reason for the institution of this present action in the High Court Onitsha.

The defendants in their Statement of Defence denied the allegations of trespass. They averred that 1st defendant and other members of the Umusiome family farmed on the land in dispute, and that the other defendants have no farms on the land. In paragraphs 13, 14, 15 & 16 of the statement of defence the defendants averred:-

13. “The 1st defendant further says that his ancestors have occupied this land for a period beyond human memory.

14. The Defendants say that because their people have been in possession of this land they – the occupiers and possessors have put in tenants on the said land to cultivate the same and to tap palm trees thereon.

15. The defendants say that although the Ogidis have claimed the title to this land they have never disturbed the possessions of the defendants and always stopped their cultivation of the land along Mkpia Bush known to the Nkpor people as Mgbu or Ebu.

16. The defendants will at the trial plead

1. Res Judicata
2. Long Possession
3. Laches
4. Abuse of Process of Court.”

Of the witnesses called in support of Plaintiffs claim only the 2nd plaintiff gave evidence on behalf of the other Plaintiffs. He claimed that the land in dispute had always been in the possession of the Ikenga Ogidi people from time immemorial. He said that as owners, the Ogidi people live on the land, farm on portion of it, reap the economic trees and put tenants on other portions of the land. He denied that the defendants ever farmed or lived on the land except by their recent acts of trespass which gave rise to the present action. Under cross-examination the 2nd Plaintiff as the 3rd witness for Plaintiffs had this to say:-

“We showed the surveyor our own farms where we farmed on the land in dispute but not within the area upon which the defendants trespassed. The Umusiome people did not trespass into the whole area of Owelle land but into a portion… The palm trees were felled in several places and we showed them to the surveyor. What we showed the surveyor was the stumps of the palm trees. I cannot tell after they have been cut that I saw them. I did not see when they were being cut down. Several Umusiome people have cassava farms on the land when we brought this action.
We have seen many of their women cultivating cassava farms there. I had no cassava farms there. We do not farm there yearly. We know some of the individuals who own the cassava farms. We sue the defendants. Where we saw their people clearing the land and cultivating it.” (Underlining ours).

The 4th Plaintiffs’ witness, is one Nwafor Omem. He gave evidence, that his age group, known as the Seven Age Group supervised Owelle land. He had, at the time he gave evidence, been taking part in the supervision of the land for four years. He further stated:-

“Four years when Nkpor people trespassed on the land we informed our people and a report was made to the people. Some of the people were all these nine defendants and others. All the people had farms on the land including the nine defendants, at the time this action was brought. They had cassava farms and farms for yams.”

Under cross-examination the witness stated-