Chief Alimonu Ajukwara V. Sebastine Izuoji (2002)

LAWGLOBAL HUB Lead Judgment Report

I. L. KUTIGI, JSC 

In the High Court holden at Oguta the Plaintiffs in paragraph 15 of their Further Amended Statement of Claim, claimed against the Defendants jointly and severally as follows- “(a) Declaration that the Plaintiffs are entitled to the Customary Right of Occupancy to pieces or parcels of land known as and called ‘OKWU OVURUEGBU,” “OKWU NKPURUNKWU.” “OKWU ADU.” “OKWU OGWUGWU,” ‘OKWU NWAOKWU KWOFE” and “OKWU NWAOKWOTU.” (b) N10,000.00 (Ten Thousand Naira) being general damages for trespass. (c) Perpetual injunction restraining the defendants, their servants or land agents from entering the said pieces of land.” After the filing and exchange of pleadings the case proceeded to trial. At the trial nine witnesses testified for the Plaintiffs while five witnesses testified for the Defendants. The Plaintiffs’ case is that the land in dispute is a vast area of land comprising six (6) contiguous pieces or parcels of land of different names as stated above and which is verged pink in their Plan, Exhibit ‘A’. That the land in dispute has been theirs from time immemorial’. It was deforested by their ancestor called OWERRE who farmed on the land until his death, and that after his death it was inherited by his two sons Dioha and Azuokwu.

Both used the land, and after their death it passed through successive heads of their family to the present generation of their family. The family farmed on the land and built farm houses thereon. The family also established juju shrines and planted economic and fruit trees on the land. The Defendants on the other hand said the land in dispute is only part of the larger parcel of land known and called “ORU ELUA UMUOPARA” verged green in their plan, Exhibit “C”. They said the land was deforested by one Ulili their ancestor. At the death of Ulili the land devolved to his only son called Opara and thereafter to Opara’s four sons. The Defendants maintain that members of their family have been in possession of the land as owners from time immemorial and making use of same without anyone challenging them. At the end of the trial and after addresses by counsel on both sides, the learned trial judge in a reserved judgment found for the Plaintiff’s awarding them the declaration of title, N2,000.00 being general damages for trespass and an order of perpetual injunction. Aggrieved by the decision of the trial High Court, the Defendants appealed to the Court of Appeal holden at Port-Harcourt. The Plaintiffs also cross-appealed to the Court of Appeal in respect of the finding by the learned trial judge to the effect that the founder of the land in dispute was ANYAOHA instead of OWERRE.

The Court of Appeal in a unanimous judgment allowed the Defendants’ appeal. The judgment of the High Court was set aside and in its place an order dismissing Plaintiffs’ claims was substituted with N1,500.00 costs in the High Court and N2,500.00 costs in the Court of Appeal in favour of the Defendants. The Plaintiffs’ cross appeal was also unanimously dismissed. Dissatisfied with the judgment of the Court of Appeal, the Plaintiffs have now appealed to this Court. As provided by the Rules of Court the parties filed and exchanged briefs of argument. The Plaintiffs have in their brief of argument identified the following issues as arising for determination in the appeal “i. Whether the Court below was right when it held that the trial Court misapplied the Rule in Kojo v. Bonsie (1957)1 WLR 1223. ii. Whether the Court below could rely on the alleged misapplication of the Rule in Kojo v. Bonsie (supra), to deny the appellants (plaintiffs) success even on their claim for trespass. iii Whether the Court below was right when it dismissed the entirety of the claims of the Plaintiffs simply because it rejected the traditional history put forward by the Plaintiffs. iv Whether the Court below was right when it dismissed the Cross-Appeal” The issue will be treated one after another. Issue (i) This issue deals with the parties’ traditional histories and the applicability or otherwise of the rule or principle in Kojo v. Bonsie (supra). The complaint is centered around the portion of the lead judgment of the Court of Appeal where it is stated on page 258 of the record thus. Both parties pleaded boundary neighbours and acts of possession.

They led evidence, and after the learned trial judge made effort to review it, he made the following findings and observations inter alia: “I am satisfied that by virtue of the evidence of primary facts in their favour, the plaintiffs’ account of the traditional evidence of the land in dispute is preferred and accepted as true – Kojo v. Bonsie (supra) refers. I am satisfied that the land in dispute was deforested by Plaintiffs’ ancestor called Anyaocha from whom it passed to Odunze his son. From Odunze it passed to Chukwu Nwodo from whom it passed to Azuwuike his brother. From Azuwuike it passed to James Mgbelu the Present head of Plaintiffs family” It seems to me I ought to comment briefly on the manner the learned trial judge reasoned towards applying the principle of test in Kojo v. Bonsie (1957) 1 WLR 1223. He appeared to have first proceeded to consider what he called primary facts which I understand him to include facts in recent years regarding acts of possession and the evidence of some of the witnesses in respect of what they observed or knew personally, before adverting to the traditional histories by the parties to reach a conclusion that the Plaintiffs’ history was preferable. I do not think that was the right approach to the evidence of traditional history. I must say with the greatest respect, that the learned trial judge appeared to have walked the principle in Kojo v. Bonsie (supra) as I understand it, on the head, for want of a better expression by me. I hope I shall not through inadequate explanation on my part, lead anyone to misunderstand my view of how the principle in that case is expected to work.”

SC. 15/1998