Chief Kalu Okorie Irolo & Ors. V. Ebe Ebe Uka & Anor. (2002)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C.

In Suit No. HU/59/74, Elder James Okoro and Chief Benjamin Uduma Abam, for themselves and as representing Ndi Ojiugwo Village of Abam sued Chief Kalu Okorie Irolo, Alugwe Okeke, Nicholas Uka Kalu, Sunday Dike Kalu, Kalu Okorie and Kalu Ebe, for themselves and on behalf of Ndi Ebe Village of Abam, claiming (i) declaration of title over the piece or parcel of land known as and called OGBUEBULU situate at Ndi Ojiugwo Village, Abam in Ohafia Division within the judicial division of this Honourable Court and of the annual rental value of N10.00 and (ii) Perpetual Injunction to restrain the defendants, their servants, workmen and/or agents from in any way interfering with the plaintiffs’ ownership and possession of the said OGBUEBULU LAND.

And in a counter action, HU/19/76 instituted by the Ndi Ebe Village against the Ndi Ojiugwo Village, Chief Kalu Okorie Irolo, Alugwe Okeke Alugwe and Nicholas Uka Kalu, for themselves and as representing the people of Ndi Ebe Village Abam claimed from Elder James Egbe Okoro, Chief Benjamin Uduma Abam, Ikpo Ibiam, Ebe Ebe Uka, Daniel Mba, Usu Ukwa, Omegbe Egbe Okoro and Gbagalugu Usu, for themselves and as representing Ndi Ojiugwo Village, Abam:

1. Declaration of title to all that lot, piece or parcel of land known as and called OGBUEBULU situate at Ndi Ebe, Abam within Umuahia Judicial Division – annual rental value N10.00.
2. N1,000.00 being general damages for trespass upon the said land.
3. Injunction permanently restraining the defendants, their servants agents and/or workmen from entry upon or interference with the said land.

Both sides sought and were granted leave to sue and defend as representatives of their respective communities of Ndi Ojiugwo and Ndi Ebe Villages.

Pleadings in each case were ordered, filed and exchanged and, with leave of court, amended. The parties, the subject matters and claims in both actions being the same, the two actions were, on the application of the parties and by order of court, consolidated with the parties in suit No. HU/59/74 being plaintiffs and defendants respectively in the consolidated suits and shall hereinafter be so referred to accordingly.

The plaintiffs in their amended statement of claim averred, inter alia, as follows:

4(i) The land in dispute was founded by the ancestor of the plaintiffs called OJI ONWU UGWO simply called Ojiugwo a name he was given because his father had lost his sons by death before he was born after sacrifice to the sun god Kamalu. Ojiugwo first cleared the land of virgin forest and started to farm it and harvest palm fruits therefrom.

(ii) Ojiugwo was the son of Amaizu who was one of the sons of Abam Onyerubi the founder of Abam. In Abam custom, Ndi Ojiugwo are entitled to the waist part of any animal killed for Abam Onyerubi. It is Ndi Ojiugwo that offer Abam traditional annual sacrifice of IZAA AFIA after clearing bushes, before the bushes in Abam are burnt for farm work for each farming season.

(iii) When defendants’ ancestor, an Ibibio man called Ebe, nick-named Ebenta Ite who was a fisherman and a hunter desired to settle near the Igwu River, his master Urji Ndi Okpo-ogu brought him to Ojiugwo who made him customary grant of the area now known as Ndi Ebe for settlement with Igwu River as the boundary. This was many years after Ojiugwo had settled and established Ndi Ojiugwo.

(iv) From time immemorial the Igwu River has been the natural boundary between the land of the plaintiffs and that of the defendants. From the time of Ojiugwo, the following predecessors of the plaintiff as head of Ndi Ojiugwo have with their people exercised maximum acts of ownership and possession over the land in dispute:- Okoite Ojiugwo, Okeke Agwu, Agwu Okeke, Kalu Abam, Abam Kalu, Kalu Okeke, Kalu Agwu, Ola Ngwobia and then the 2nd plaintiff who is the present Village head of Ndi Ojiugwo. Until the acts that led to the present action no one from defendants village has ever had claim to plaintiffs’ land across the Igwu River which has been the boundary from time immemorial.

5. The plaintiffs and their predecessors have been making use of the land in dispute by farming there, harvesting palm fruits, placing tenants therein and pledging some portions; Job Eechi, Ikpo Ibiam and Zuoke Egbuta are tenants of the Plaintiffs still living in the land in dispute. Portions of the land in dispute were pledged to George Agbai Ogbuagu deceased and Ibe Agwu. The pledges were oral but when each one of them left the portion pledged to him, he gave receipt for the money refunded to him. These receipts will be tendered at the hearing. The following persons of the plaintiff’s village have their cocoa farms in the land in dispute:-

(1) Ota Usu (2) Ebe Ebe Uka and (3) Chief Kalu Agwu. The plaintiffs’ juju shrine by name Oguebulu is on the land in dispute.

6. The first plaintiff had a cocoa farm in the area now planted with rice by Ikpo Ibiam, a tenant of the plaintiffs. In 1986, the Rice Work Unit of the Ministry of Agriculture, Bende stationed at Ndi Ebe Abam cut down the cocoa trees and burnt some to plant rice. The first plaintiff protested and in reply received letter No. BE/104/182 of 25th June, 1968 which will be tendered at the hearing.
7. Between the plaintiffs and the defendants the customary practice has been when in any year any individual member of the defendants wanted to cross the Igwu river to the side of the plaintiffs and farm there he would approach the chiefs of the plaintiffs with a pot of palm wine and 2/- or 20 kobo worth of meat. After this the plaintiffs would give him farm strips in the land in dispute to farm and after harvesting he would quit the land. Within the living memory of the plaintiffs the following persons of the defendants’ village have done so:- Chief Agunta who once was the Head Chief of the defendants’ village, Ejike Kalu, Iche Odachi and Okeke Uba. The point is that Ndi Ojiugwo is a much smaller village than Ndi Ebe and the defendants have need for more farming land.
8. In the time past it was custom in Abam clan, to which the parties belong, for neighboring villages cross their boundaries with other neighbouring villages to harvest palm fruits from palm tress growing in the land of their neighbours. This did not ipso facto make such land communal in ownership to the villages. It is by this practice that the defendants’ people could cross the Igwu river to harvest palm fruits growing in the land in dispute. But when the need to pay school fees communally arose in modern times this practice was stopped all over Abam Clan. Despite protests by the plaintiffs who are only one- fifth in population of the defendants, to the defendants to stop crossing the Igwu river to harvest palm fruits from the land in dispute on the ground that the plaintiffs need money to maintain their children in school and that the custom no longer prevails in Abam Clan, the defendants have persisted to harvest palm fruits in the land in dispute. In 1974, when the plaintiff challenged the defendants for harvesting palm fruits in the land in dispute, the defendants instructed their Solicitor, K. Ifegwu, Esq., to write to Ebe Ebe Uka and Ikpo Ibiam, tenants of the plaintiffs. It was from this letter that the plaintiffs noted for the first time since time immemorial that the defendants were laying claim to the ownership of the land in dispute. This letter will be tendered in evidence at the hearing. The defendants after their solicitor had written the letter above referred, reported the plaintiffs to the police at Ohafia. The plaintiffs approached their solicitor, A. K. Uche, Esq., and instructed him to write to the Divisional Police Officer, Ohafia explaining their own stand in the matter. He wrote a letter date 3rd September, 1974, which will be tendered at the hearing. The D.P.O. heard both parties and advised civil action. His letter No. AB. 7050/EC/UF/Vol.5/117 of 7th September, 1974, to plaintiffs solicitor will be tendered at the hearing. It was on the strength of this advice that the plaintiffs took the present action in this Honourable Court.

The Defendants, on the other hand, in their own amended statement of defence pleaded thus:-

4. The land in dispute was founded by Ebe, the first ancestor of the Plaintiffs who cleared it of virgin forest and took it into effective possession. Since the founding of this land by Ebe, it has descended from generation to generation of the plaintiffs’ village until the present. The plaintiffs have as their ancestors before them did, exercised maximum acts of possession and ownership over the land in dispute, farming thereon, reaping fruits from economic trees thereon, lumbering, fishing in the Igwu river and other streams on the land, cutting sticks therefrom for building purposes and for use as firewood, collecting ropes therefrom the building purposes and renting and allowing portions to individuals for farming and for establishing plantations without let or hindrance by the defendants or anybody else. The plaintiffs’ Ihusi and Ogbuebulu juju shrines are on the land. There are many Plantations on the land in dispute established by members of the Plaintiffs’ village or strangers who were authorised by the Plaintiffs.
5. The land Ogbuebulu is named after Ogbuebulu stream which flows across the land and joins the Igwu river. There are bridges across both the Ogbuebulu stream and the Igwu river which bridges were constructed by the plaintiffs’ village by communal effort. The road between the Ogbuebulu stream and Igwu river used to be very swampy during the rainy season and it was constructed and made an all season road by the plaintiffs. The Igwu river was in the habit of being flooded during the raining season covering much of the farmland in the area because the course of the said Igwu river was blocked by many logs of fallen trees and many big trees and plants growing along the course of the river. But these logs, trees and plants were cleared by the plaintiffs to enable the river have a thorough flow and thereby avoided flooding the nearby farmlands during the rains. When the plaintiffs were constructing the bridges across the Igwu river and Ogbuebulu stream, constructing the road between the two rivers and clearing the course of the Igwu river, the defendants did not aid the plaintiffs nor did the defendants challenge them. There are many plantations and farms on the land in dispute owned by the Plaintiffs’ people or their tenants.
6. One Okoro Agba of Amuru Abam, the late father of the 1st Defendant went to the defendants’ village from Umuhu Abam as a native doctor many years ago. He later went to the plaintiffs’ village also as a native doctor and asked to settle there and Ejirika Ebe, the then head of the plaintiffs’ village allowed him to settle on a portion of the land in dispute. He settled there and planted some economic trees. It was when Okoro Agba was living at that portion of the land in dispute that the 1st defendant was yet very young and was buried by Ejirika Ebe and his people. The 1st defendant was allowed to continue to enjoy the economic trees his father had planted. The first defendant lived at Ndi Ebe Village and while he lived there he planted some cocoa on the portion allowed to his father. He married his first and second wives from Ndi Ebe village. In fact he was treated as Ndi Ebe man by the plaintiffs and was allowed to farm on lands of the plaintiffs without discrimination. The 1st defendant later moved to the Defendants’ village where he now lives. He is using the fact of his late father’s settlement and the first Defendant’s subsequent use of portions of the land in dispute to support the Defendants’ claim to the land. The old abode of Okoro Agba is indicated on the Plaintiffs’ plan. Many of the cocoa trees planted by the 1st Defendant were destroyed by Mr. Jackson and his team when they were allowed a portion of the land in dispute by the Plaintiffs to plant rice after the 1st Defendant had long settled at Ndi Ojiugwo village.
7. During the Nigerian Civil War many refugees flocked to Ndi Ebe from Edda in Afikpo division. When Ndi Ebe village became congested because of the influx of these refugees. The Plaintiffs showed them a portion of the land in dispute where they cleared and settled and planted food crops around their settlement. At the end of the war many of them went away while a few remained and the few that remained went to the plaintiffs during planting seasons to ask for portions of the land in dispute to cultivate and they cultivated mainly rice. The plaintiffs gave them portions of the land in dispute on payment of money. In 1975, the defendants intimidated the said Edda settlers who were forced to make payment to the defendants for the portions of land on which they cultivated rice without the knowledge of the plaintiffs. When the plaintiffs got to know about this, they questioned the Edda settlers who informed the plaintiffs that the defendants threatened their lives hence the Edda settlers had to pay the defendants for the portions the settlers cultivated. The plaintiffs asked the settlers to leave the land and they did so. The area allowed to the Edda settlers is shown in the plaintiffs’ plan and verged ochre. This area where the Edda settlers were allowed to stay during the Nigerian civil war used to be rented out to some persons from Edda to harvest palm fruits therefrom on payment of annual rent.
8. During the Nigerian Civil War, the Rice Unit of the Ministry of Agriculture approached the plaintiffs for a portion of land to plant rice. One Mr. Jackson, an expatriate employed for the rice scheme went to the plaintiffs village with other Nigerian personnel engaged in the scheme and made the request. The plaintiffs showed the rice team a portion of the land in dispute and they planted rice. The said portion is verged light green in the plaintiffs’ Plan.
9. Ndi Ojiugwo village is comparatively new. It came into existence many years after Ebe had established Ndi Ebe village. One Amioma Okweji of Ozu Abam had twins. Her husband drove her out of his compound, as bearing twin babies was forbidden in the whole of Abam clan at that time. She could not return to her father Okweji because of the same reason. Amioma went to live at Ndi Ezinta compound at Ozu Abam where twin mothers were allowed to live. From there she was attending market at Ndi Ememe Abam on Ede days, the Ndi Ememe Abam market days. She met Ezenta Oji at Ndi Ememe and became friendly with him. Ezenta Oji who was the son of the Nze (meaning Chief Juju priest of Abam, approached Okweji and asked to marry Amioma. When Oji got the information that his son was associating with a mother of twins, he drove him away and Ezenta stole a duck at Ndi Ezinta compound and was driven away together with Amioma.
10. Plaintiffs’ say that Amioma’s father appealed to Okoro Okekwu then the head of the plaintiffs’ village to allow Amioma and her husband to settle on a portion of Ndi Ebe land. Okoro Okekwu agreed and allowed Amioma and her husband to settle on a portion of Ndi Ebe land which portion now forms part of Ndi Ojiugwo village. When Amioma and Ezenta settled at the area allowed them by Okoro Okekwu, the father of Amioma demanded bride price for Amioma from Ezenka Oji who could not pay because he had no money. He was then nicknamed Ojiugwo because he paid no bride price for Amioma and he was known to be a habitual debtor. The defendants are the descendants of Ezenta Oji alias Ojiugwo and Amioma and that is why the defendants are known as Ndi Ojiugwo.
11. The plaintiff’s say there are two areas within the land in dispute which are thickly forested. One area to the north is called Osan Nkoko because crabs breed in large numbers in that area and the other Oka Ururo to the south because it is very muddy. These areas are very swampy during the rains and the plaintiffs’ did not farm these two areas as often as they did on the other parts of the land in dispute. The plaintiffs are now gradually deforesting these two areas by converting parts of them to rice and cocoa plantations. The said two areas are verged light blue in the plaintiffs plan.
12. Sometime in 1971, one Ikpo Ibiam of Edda (3rd defendant), Ebe Ebe Uka of Ndi Ojiugwo (4th Defendant) and Daniel Mba (5th defendant) entered three separate portions of the land in dispute and cleared those portions for the cultivation of rice without the consent of the plaintiffs. The plaintiffs questioned the defendants’ people who admitted they authorised the said three persons to clear the portions and the said three persons also confirmed what the defendants’ people said. The Plaintiffs instructed a solicitor, K. Ifegwu, Esq., to write to the trespassers and the defendants to desist from entering the land. The defendants continued to trespass by harvesting palm fruits on the land.
13. The plaintiffs say they reported the defendants to the police at Ebem Ohafia. The police investigated the matter and said it was civil and the Divisional Police Officer, Ohafia asked the councillors of Ohafor Abam Community Council to go into the matter. Councillors of Ohafor Community Council went into the matter with consent of the plaintiffs and the defendants. The said Councillors made a demarcation asking plaintiffs to leave part of the land to the defendants. They made a demarcation as shown in the plaintiffs plan. The Councillors pleaded with the plaintiffs to leave for the defendants a small area of the land in dispute to the west of the demarcation line. While the plaintiffs were yet considering the decision of the Ohafor Community Councillors, the defendants took out action for declaration of title against them – HU/59/74: Elder James Egbe Okoro and another Chief Okoro Irolo and Others refers.
14. In or about January, 1976, the defendants, their servants, agents and/or workmen without leave, licence or consent of the plaintiffs went on the land in dispute and cut down and sawed one Ihusi tree growing at the Ihusi juju shrine of the Plaintiffs. The stump is shown on the Plaintiffs’ Plan.

It is clear from the pleadings of the parties that they each relied for their claim to title to the land in dispute on traditional history and acts of ownership and possession that, is, two of the five methods by which title is proved.

At the trial the plaintiffs called six witnesses while the defendants called seven. After addresses by learned counsel for the parties, the learned trial Judge, in a well-considered judgment found for the defendants, that is, the plaintiffs in Suits No. HU/19/76. The learned Judge found-