Christian Soronnadi &anor Vs Aruji Durugo (2018)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC

By their Writ of Summons filed on 14/3/1983 and Statement of Claim filed on 30/8/1983, Fidelis Durugo, Aruji Durugo and Dennis Durugo, for themselves and on behalf of the family of Amasa Ngugo Ikeduru of Ikeduru Local Government Area of Imo State, instituted an action against the appellants herein before the High Court of Imo State, Owerri Judicial Division seeking the following reliefs:

a.Declaration that the plaintiffs are entitled to customary rights of occupancy in respect of the piece and parcel of land known and called Umudurugo land annual value N10.00 situate at Umueze Amasa Ngugo Ikeduru within the jurisdiction and more particularly shown in the plan to be filed in court.

b.N50,000.00 general damages for trespass.

c.Injunction restraining the defendants by themselves, their servants and agents from entering the plaintiffs’ land and therein acting in any manner inconsistent with the plaintiffs’ customary rights.

The plaintiffs’ claim as per paragraphs 4, 5 and 6 of their statement of claim is that they have been in customary possession of the land in dispute from time immemorial. They traced succession to the land from their original ancestor, Duru Ibeneye, the founder of the land down to themselves by inheritance. It was their case that they had exercised numerous acts of possession undisturbed on the land. That at a point in time, part of the land was pledged by a member of their family to a member of the defendants’ family but was later redeemed. The felling of Iroko trees on the land in 1983 by the appellants is what gave rise to the suit at the trial court.

The appellants, as defendants contended that the land in dispute, which they called “ALA UHU UMUANU” devolved on them by inheritance through their original ancestor and common ancestor to the parties, one Emeze. They pleaded the devolution of the land from the said Emeze down to themselves. They claimed that at a point in time many years ago, there were many deaths occurring at the respondents’ homestead, which made it uncomfortable for Oleru Durugo, their ancestor to continue to live there. Oleru Durugo also happened to be an in-law to the appellants. Their case was that at Oleru Durugo’s request, he was granted the land in dispute to live on until he found something more suitable for himself and his family. That it was a temporary arrangement. That the relations who came with Oleru Durugo pursuant to the grant made to him, eventually left and settled elsewhere but Oleru Durugo remained on the land. Relying on some decisions arising from suits instituted at the native courts, they raised the defence of estoppel per rem judicatam and issue estoppel.

Both sides testified in respect of their various positions and called witnesses and tendered documents including survey plans. At the conclusion of the trial, the learned trial Judge rejected the pleas of res judicata and issue estoppel raised by the appellants and entered judgment on 17/6/96 in favour of the respondents as follows:

“I have already held that the grant was not proved and that plaintiffs therefore have the advantage of the operation of Section 46 of the Evidence Act. Plaintiffs maintained both in their pleading and evidence that the land in dispute is one stretch parcel of land on which they live. They gave evidence of traditional history as well as evidence of their acts of ownership and possession in and over the land in dispute which, according to them including living on the land, burying their dead on the land and reaping economic trees on the land. Plaintiffs’ plan of the land in dispute, Exhibit A, shows their houses, the ruined houses of their relations and the graves of their relations. Plaintiffs’ evidence of traditional history is in accord with their pleading and I find nothing materially contradictory in it.

Although defendants also pleaded and gave evidence of their traditional history, pitched against their failure to prove the grant pleaded by them and the evidence of DW2 that the land described in defendants’ plan, Exhibit K, differed from the land shown in the plaintiffs’ plan, Exhibit AI am inclined, on the evidence, to accept the case of the plaintiffs and find as a fact that the land in dispute as shown in Exhibit A belongs to the plaintiffs.

The cause of action is pleaded in paragraph 7 of the statement of claim as the felling in 1983, by the defendants of an Iroko tree on the land in dispute. Defendants admitted doing so in paragraph 12 of the statement of defence, claiming that they did so in their right as owners of the land. Having found that the land belongs to the Plaintiffs, it follows that the entry of the defendants on that land in 1983 to fell the Iroko tree is trespassory as plaintiffs have complained. An injunction can be granted to restrain further trespass in appropriate cases and the instant case is one such appropriate case….

In the final result, the action succeeds.”

The plaintiffs’ claims for declaratory and injunctive reliefs were granted with {42,000.00 general damages for trespass awarded in their favour against the defendants.

Being dissatisfied with the judgment, the appellants appealed to the Court of Appeal, Port Harcourt Division. In a considered judgment delivered on 17/1/2007, the appeal was found to be unmeritorious and accordingly dismissed. The appellants have now approached this court as the final arbiter vide their notice of appeal filed on 13/3/2007 containing four grounds of appeal.