Alam Oparaji & Ors. V. Nwosu Ohanu & Ors. (1999)

LAWGLOBAL HUB Lead Judgment Report

I. IGUH, J.S.C

This is an appeal against the judgment of the Court of Appeal, Port Harcourt Division which had on the 22nd day of November, 1991 dismissed the appeal by the plaintiffs from the decision of Ukattah, J. as he then was, sitting at Oguta in the High Court of Imo State.

The proceedings are in respect of two consolidated suits. The plaintiffs, for themselves and as representing the Umuhorum Umunwanyi Community of Ohuba, Ohaji had in suit No. HOG/24/81 claimed against the defendant, for themselves and as representing the Umuagor Obosima Community of Ohaji, as follows:-

‘”(a) Declaration that the plaintiffs are entitled to the customary right of occupancy over the land called “Wemewara/Ogbutara” situate in Ohuba, Ohaji.

(b) Ten thousand naira (N10,000.00) being general damages for trespass.

(c) Perpetual injunction restraining the defendants, their agents, wives, relations, inlaws, workmen from entering the said land to carry out any form of farming or building.”

The defendants, as plaintiffs, by a cross-action in suit No. HOG/27/81, claimed against the plaintiffs, as defendants, as follows:

“(a) Declaration that the plaintiffs, are entitled to the customary right of occupancy of that piece or parcel of land known as and called ‘Uzo Abotorobo-Ugbirigba’ otherwise called ‘Ohia Oru Umuagor’ situate at Obosima Ohaji, within this jurisdiction which annual value is N10.00.

(b) N25,000.00 (twenty-five thousand naira) general damages for trespass into the various portions of plaintiffs’ land verged red within that verged green in survey plan No. VLD.125/81.

(c) Perpetual injunction restraining the defendants, their agents, servants and all others claiming through or under them from causing wastes on and from entering the land again.”

Pleadings were ordered in the consolidated suits and were duly settled, filed and exchanged.

At the subsequent trial, both parties testified on their own behalf and called witnesses. It is clear from the evidence that both parties belonged to the same autonomous Community, namely, the Ohuba autonomous Community in the Ohaji/Egbema/Oguta Local Government Area of Imo State. They also claimed roughly the same piece or parcel of land, although from the survey plans filed, the parcel of land claimed by the defendants appears to be slightly larger than that claimed by the plaintiffs.

The plaintiffs’ case as pleaded and testified to is that the land in dispute is owned and possessed by their family of Umuohorum, Umunwanyi, Ohuba. They relied essentially on traditional history and acts of possession to establish their case. The defendants on the other hand, similarly based their ownership of the land in dispute on evidence of tradition and acts of possession thereof from time immemorial. Both parties also pleaded and relied heavily on two customary law arbitrations between them in respect of the land in dispute which were headed by P.W.5 and P.W.7 respectively. Each side gave a different version of the decisions of the arbitration panels and called evidence in support of their divergent versions. From the evidence tendered at the trial, it is clear that there was no agreement between the parties as to the real decisions of the arbitrations. Each of the parties claimed that the decisions of the arbitrations were in its favour and each called evidence to support its assertion in this regard.

At the conclusion of the hearing, Ukattah, J., as he then was, after a careful review of the evidence was of the view that the issue of estoppel founded on the two arbitration proceedings was not established by the parties. He was satisfied that neither P.W. 5 nor P.W. 7 found, by way of customary law arbitration, that the land in dispute belonged to the plaintiffs. He preferred generally the case of the defendants on the issues of traditional history and acts of possession of the land in dispute to that of the plaintiffs. Consequently, he proceeded to dismiss the plaintiffs’ claims in their entirety. On the other hand, he found for the defendants and declared their entitlement to the customary right of occupancy over the piece or parcel of land in dispute known as and called “Ohia Oru Umuagor” or “Ogbotorobo Ugbirigba” situate at Umuagor, Obosima and more particularly delineated and shown in plan number VLD125/81, Exhibit F, and therein verged red. The defendants were also awarded N3,000.00 as general damages for trespass together with an order of perpetual injunction restraining the plaintiffs, their servants, agents and/or workmen from any further entry upon or in any way interfering with any part of the said land outside the area allowed the 2nd plaintiff for his palm plantation.