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,OKU 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 . 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 Plaintiffs 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 –

Whether the Court below was right when it held that the trial Court misapplied the Rule in Kojo v. Bonsie (1957) I.W.L.R. 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.