Ama Akurunwa & Ors Vs John Okorie & Anor (1972)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, J.S.C.

There are two suits involved in this appeal. They were both consolidated and tried together in the High Court, Aba, in the East Central State.

The first suit, which was originally numbered A/34/58 but later as HOW/2/63, is a claim by the plaintiffs therein for themselves and as representing the people of Obeakuma village in Obudi Agwa against the defendants therein for themselves and as representatives of the people of Umunjam village in Amakohia for a declaration of title to two pieces or parcels of land known as “Okofia” and “Nwicha” in Obeakuma village, Obudi Agwa, Owerri Division; 250pounds damages for trespass and an injunction. The second suit is in like manner a claim for a declaration of title to “that piece or parcel of land known as and called “Okohia” and “Nwakpu”; 200pounds damages for trespass and an injunction.

It was instituted by the first defendant in suit No. A/37/58 on behalf of himself and the people of Umunjam Amakohia Family against the three plaintiffs in the said suit and two other persons as defendants “for themselves and on behalf of the people of Obeakuma Obudi Agwa family.” Like the first suit, it was originally numbered A/37/58 but later as HOW/8/65.

In his judgment, the learned trial Judge (Egbuna, J.) who heard both suits referred to the plaintiff in suit No. A/34/58/HOW/2/63 and defendants in suit No. A/37/58/HOW/8/65 as plaintiffs, and the defendants in suit No. A/34/58/HOW/2/63 but plaintiffs in suit No. A/37/58/HOW/8/65 as defendants. In this appeal, the appellants are the defendants in suit No. A/34/58/HOW/2/63 and plaintiffs in suit No.A/37/58/HOW/8/65 and will henceforth be referred to as such, the plaintiffs in suit No. A/34/58/HOW/2/63 and the defendants in suit No. A/37/58/HOW/8/65 being herein at all times to be referred to as respondents.

Pleadings and plans having been ordered, were duly filed and delivered in  both suits. At the trial both sides gave evidence, called witnesses and produced and tendered a number of Native Court proceedings and judgments as well as plans of the land in dispute claimed by either party. The plan of the land in dispute claimed by the respondent herein was admitted and marked Exhibit ‘E’, while that which was put in by the appellants was marked Exhibit ‘F’ in the proceedings. The plan, Exhibit ‘E’, bears the number EC59/58 as well as the signature of the Licensed Surveyor Chodilue, who prepared it, and is dated 10th June, 1958; but the plan, Exhibit ‘F’, which was prepared by Licensed Surveyor Onochie is dated 27th December, 1962 and numbered CA/75/62. It is a composite plan and contains the area of land claimed by the respondents and shown and delineated in Exhibit ‘F’ and is in the said plan, Exhibit ‘F’ verged green. From the plan, Exhibit ‘F’, it is apparent that the area of land claimed  by the respondents is different from and smaller than the area of land claimed by the appellants, which is the subject matter of suit No. A/37/58/HOW/8/65. It is, however, not wholly enclosed within the area of the land claimed by the appellants as shown and delineated in Exhibit ‘F’ as certain portions thereof lie outside Exhibit ‘F’.

Of the Native Court proceedings and judgments put in and marked as exhibits in the proceedings, only two are relevant for the purpose of the present appeal. These are, the Ara Umunwoha Civil suit No. 14/47 – Igbo Mgbachi of Amakohia v. Njirinzu and Onuwuchia of Obudi Agwa – Exhibit ‘B’; and No. 13/54 – Ama Akurunwa and Okehi Opurum – for themselves and others of Umunjam Amakohia v. John Okorie and 5 Others – all of Obeakuma Obudi Agwa – Exhibits ‘C’, ‘C1’ and ‘C2’. Indeed, in view of the fact that the final order made by the Resident on appeal in suit No. 13/54, Exhibits ‘C’, ‘C1’ and ‘C2’ of 12th June, 1956 was a “nonsuit pending the final determination of suit No. 14/47”, Exhibit ‘B’ aforesaid, it seems pertinent to state that the only subsisting and effective and relevant judgment having regard to the issues involved in this appeal is the judgment in suit No. 14/47, Exhibit ‘B’.

Both the respondents and the appellants herein attach some importance to suit No. 14/47, Exhibit ‘B’, in that they both pleaded it both in their statements of claim and defence in both suits; but – and this is not without significance – neither the respondents nor the appellants herein pleaded it as an estoppel either per rem judicata or in pais.

In suit No. A/34/58/HOW/2/63 the only reference which the respondents made to the Native Court suit, Exhibit ‘B’, is contained in paragraph 8 of the statement of claim dated 5th August, 1958 and reads thus:-

“8.     In suit No. 14/47 an action for declaration of title and trespass on the land known in the action as Okpoweze was instituted by Igbo Ngbachi of Amakohia against Njirinzu and others of Obudi Agwa but the action failed. This land called Okpoweze by Igbo Ngbachi in his action belongs to the plaintiff to who (sic) the land is known by the name of Okpohoboro.”

The averment contained in  paragraph 8 of the respondent’s Statement of Claim was answered by the appellants in paragraphs 7 and 8 of their final statement of defence dated 20th June, 1963 in the following terms:

“7.      The defendants aver that paragraph 8 of the Statement of Claim is typically frivolous and should be struck out.

8. About 1954, there was a land dispute between one Nwigbo Ngbachi of Umuike Amakohia and Njirinzu of Obeakuma village. During the course of the case the defendants discovered what was described as a temporary boundary being made between the parties to the case. This said boundary cut into the defendants’ land called “OKOHIA” which is now in dispute. The 1st defendant promptly took out an action suit No. 13/54 against the plaintiffs. Judgment was given for the plaintiffs and on appeal to the Resident the then plaintiffs i.e present defendants were non-suited. The plaintiffs have referred to the said case No. 13/54 in paragraph 9 of the Statement of Claim but have deliberately obscured the real decision in the said case, and by giving the impression that judgment was in their favour.”

The Native Court suit No. 14/47, Exhibit ‘B’, was also pleaded by the appellants in paragraph 7 of their statement of claim dated 7th November, 1958 in suit No. A/37/58/HOW/8/65 as follows: