Ugugua Ukwa & Ors V Awka Local Council & Ors (1965)
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PER ONYEAMA JSC
This is an appeal from the judgment of Betuel, J. in the High Court of Eastern Nigeria at Onitsha dismissing the claim of the plaintiffs. The plaintiffs, who are the appellants and represent the people of Ezi-Awka, had claimed title to and recovery of possession of an area of land called Eke Odenigbo; £3,100 as damages for trespass to the land and an injunction to restrain the defendants from entering into or remaining upon the area in question. The respondents who were defendants below are the Awka Local Council and four named members of it. At the conclusion of the case of the appellants at the trial the respondents through their counsel stated that title was not disputed and that original ownership was in the appellants.
The relevant facts found at the trial are that between 1928 and 1936 a portion of the land in question was granted by the plaintiffs to the people of Awka for the purpose of building a town hall. About 1939 an additional portion was granted for a central market called Eke Odenigbo for the people of Awka. The site of Eke Odenigbo market was not popular with sections of Awka, notably Agulu and Amikwo, and as a result another site was chosen Southwest of it and a market established there in 1949; this new market was called Eke-Awka market and it became the central market. It was larger than Eke Odenigbo and appears to have eclipsed it. In 1952, the Awka Local Council began to administer the area of Eke Odenigbo although the central market had been moved elsewhere; it made grants of portions of it and collected rents from the grantees.
The case of the appellants was that when the Eke Odenigbo market was abandoned in favour of Eke-Awka, the Ezi Awka people resumed dominion over it and demarcated its boundary with adjoining areas granted to the people of Awka with a line of Ogilisi trees. The respondents, however, interfered with the rights of the Ezi Awka people over the land by letting portions of it and felling five iroko trees on it.
The respondents’ case was that in 1936 the whole people of Awka agreed to have a meeting place and for that purpose the area in question was surrendered by the Ezi Awka people to the entire Awka community; the village hall was then built. As a result of a scheme of development prepared by one Mr Udeozo in 1945 more land adjoining the area in question was given up to the Awka community and on this area the Eke Awka market was established and the Igwebuike Grammar School built; the area was laid out in plots and let out to tenants, and three iroko trees were felled.
It would appear from the statement of Defence that the wide expanse of land surrendered as a result of Udeozo’s development scheme is wholly outside the area in question in this case, which was itself “surrendered” to the people of Awka at their request long before Udeozo launched his ambitious development plan. The evidence in support of the respondents’ case on this point, however, is at variance with the Statement of Defence. The evidence is to the effect that the area in question and the adjoining area were surrendered as a result of the meeting of Udeozo and the elders of Awka.
However that may be, it is clear that the area of Eke Odenigbo verged yellow on the plan No. MEC/51/61 (which was marked Exhibit 1) and red on plan No. L/D69 (which was marked Exhibit 2) is the area In dispute and that the first question which had to be decided was whether the appellants or the respondents were entitled to possession of it. The learned trial judge put the question in this way: ……the question arises, did this new creation lead to the abandonment of Eke Odenigbo as a market?” His answer was “I would arrive at the conclusion, in this respect, therefore, that, qua market there has never been a sufficient abandonment of the Eke Odenigbo to destroy its character as such.” In his argument on this appeal, Mr. Onyiuke, for the appellants dealt with this aspect of the case thus:
“Who gave the land in dispute and for what? The land was used as a market and no more; when land is dedicated to public use there is no question of losing radical title; when the public no longer used the land for the purpose for which it was dedicated, in this case a market, the original tide revived.”
The learned trial Judge appears to have overlooked the evidence regarding the use to which the respondents put Eke Odenigbo after the new central market had been established. The first defence witness who was the financial secretary of the Awka Local Council said: “I know the land called by plaintiffs Eke Odenigbo…… We are in possession of that portion of land…… In 1953, I was in my present job. I was shown this area of land, and have leased portions of the land to tenants, who pay their rents to the Council……” The second defence witness, Lawrence Modekwe, in answer to questions put to him in cross-examination said: “Eke Odenigbo is no longer a market place; Mr Hill, A.D.O. ordered that the market be taken inwards in about 1946, so the place was used as a motor park; it was abandoned for use as a market; the market was moved to its present site at Eke-Awka, on a site granted for use as a market, by Ezi Awka, Agulu and Amikwo.” The third defence witness gave evidence of allocation of portions of Eke Odenigbo to sundry tenants for rents to be paid to the Council. The fifth defendant Lawrence Anwuna said:
‘Whole place at one time called Ekpe-Egbu; in 1962 the land adjoining the road was called ‘Motor Park’; the land at the back is particularly called the Awka layout which includes the whole thus killing Eke Odenigbo. In 1960, the whole land was called Awka layout by the Council and the people;’ and, further on, in his answers to questions put in cross-examination: “Eke Odenigbo was used by Ezi Awka as a market long ago; perhaps, round about 1939, because other sections of Awka had other markets, it ceased as a market but I cannot remember the date.” The fifth defence witness testified on the issue of the continued existence of Eke odenigbo as a market as follows:
“Awka people do not call the portion of land Eke Odenigbo; there was a market on the land called Eke Awka, but it was shifted away from the road later; the place where the market formerly was, was used as a motor park.”
Throughout the respondents’ case it appears to be agreed that Eke Odenigbo was abandoned as a market and that a new market, Eke Awka, was established some distance away from the main road; Eke Odenigbo was then used as a motor park.
We think that the learned trial Judge was mistaken when he concluded, in the face of all the evidence, that the area in question had not been abandoned as a market. The area was used as motor park and was laid out in building plots which, as the respondents themselves say, were let out to tenants.
The learned Judge next considered whether, assuming the area had been abandoned by the respondents, the appellants had resumed possession; he decided that the appellants had not resumed possession because “since its inception, the Council, in respect of this market, has been collecting stallage fees and rents.” There appears to us to be some want of clarity in this reasoning; If the market was abandoned in 1949 and the Council administered the land from 1952, the Council could not collect stallage fees; for there would be no market stalls in use for which stallage fees would be payable. The evidence that several people have been allocated plots on which they have built houses and for which they pay rents to the Council strengthens the evidence that the area was no longer being used as a market.
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