Cosmas Ezukwu V. Peter Uka Chukwu & Anor (2004)

LAWGLOBAL HUB Lead Judgment Report

EDOZIE, J.S.C. 

This appeal arose from a land dispute between the three original plaintiffs who in a representative capacity sued as representing members of Ihitte Community of Egbuoma in the Ohaji/Egbema/Oguta L.G.A. There was only one original defendant who was sued in his personal capacity.

Proceedings were commenced in the High Court of Imo State sitting in Oguta where pleadings were ordered, filed, exchanged and subsequently amended with the plaintiff’s further amended statement of claim and the defendants’ amended statement of defence as the terminal pleadings on which the case was contested. As formulated in paragraph 17 of their pleadings, the reliefs sought by the plaintiffs against the defendants are:

“(1) A declaration that the plaintiffs are entitled to the customary right of occupancy to a piece of parcel of land known as and called “ALA Ogbutu” situate at Egbuoma in the Ohaji/Egbema/Oguta Local Government Area within the Oguta Judicial Division with an annual value of N10.00 (Ten naira).

(2) N20,000.00 (Twenty thousand naira) being general damages for trespass to the said land.

(3) Perpetual injunction restraining the defendant, his servants or agents from entering the said land again.”

As the case progressed, the original parties were substituted by the present parties on record to wit, Cosmos Ezukwu as plaintiff and Peter Ukachukwu and Jude Ukachukwu as defendants in the respective representative capacities stated. At the trial, each party led evidence to substantiate its claim or defence. In the main, each party anchored its case on traditional evidence.

For the plaintiff, the land in dispute which is verged pink in his survey plan exhibit ‘A’ forms part of a larger parcel of land called ‘Ogbutu’ land and has been from time immemorial the property of his community. It is situated in Egbuoma in the Ohaji/Egbema/Oguta L.G.A. The original founder of the land was his great ancestor Obaji a renowned hunter who together with his brothers deforested the virgin land and exercised thereon maximum acts of ownership. After the death of Obaji, the land devolved on the named successive heads of the family until it passed over to the original 2nd plaintiff without any interference or hindrance from anybody. The ‘Ogbutu’ land derived the name from the ‘utu’, that is, the fruits growing on it much of which has now disappeared due to fanning activities on the land. It is the plaintiff’s case that as owners of the land in disputes his people and before them their ancestors had been farming on the land, reaping the economic crops thereon. During each farming season, the land is apportioned among the villagers, who in turn apportion their shares to their members for cultivation. The plaintiff further alleged that some years ago, the defendants’ father Nwokocha Ukachukwu was introduced to the plaintiff’s people by one Chief Udeze Anunihu from Muojinta as a prospective tenant on the land for the purpose of harvesting palm fruits on annual rental of ‘E10.00 (N20.00). With the permission of the plaintiff’s people, the defendants’ father was allowed to build huts for harvesting the palm fruits but he was not permitted to build permanent buildings. The defendants’ father continued to pay the yearly/rent till sometime in 1982 when it was discovered that he had clandestinely brought in some strangers, as tenants on the land on the pre that he was the landlord. On account of that, the plaintiff’91s people chased out the defendants’ father and those he put on the land. Sometime in 1983, the defendants’ father broke into the land in dispute and bulldozed the cassava plantation of the plaintiff’s people and in addition started asserting ownership of the land in dispute. The matter was reported to the police who advised the plaintiff’s people to seek civil remedy hence the proceedings leading to this appeal.

The case for the defendants is that the land in dispute also verged pink in their survey plan exhibit “B” is situated at Ose-motor known as Oguta III in Ohaji/Egbema/Oguta L.G.A. and is called “Ogbautu” land. The original founder of the land was their ancestor Ezike-Ose from Obeagwa in Oguta who first settled and lived on the land and cultivated it with his brother. The land subsequently devolved on the defendants’ father through the descendants of the original founder. It is the defendants’ case that the land in dispute is not “Ogbutu” but “Ogbautu” because of the termites and insects, which infested and ate up the crops planted on the land. Because of the menace of the termites (utu), it became the custom of the defendants’ people to perform some sacrifice on the land so as to appease the gods for a rich harvest. The defendants asserted that since the land devolved on their father, he had been in exclusive possession thereof farming on portions of the land and letting and leasing other portions to tenants including the plaintiff’s people who paid customary tributes to the defendants’ father. The defendants denied that Udeze Anunibu introduced their father to the plaintiff’s people as a tenant and asserted on the contrary that the said Udeze Anunibu was their tenant. The defendants’ futher alleged that their father built five houses on the land in dispute. One of the houses was a permanent structure of four rooms and a parlour built in 1974. Some of these houses were destroyed when the plaintiff’s people invaded the defendants’ tenants in an attempt to deprive the defendants’ people of the land in dispute. Finally the defendants maintained that the plaintiff is not entitled to his claim.

After reviewing the evidence adduced on both sides and the addresses of learned counsel made on their behalf, the learned trial Judge, Ihekire J, upheld the case for the defendants and accordingly dismissed the plaintiff’s claims. His appeal to the Court of Appeal, Port-Harcourt Division was similarly dismissed hence he has further appealed to this court against the judgment of the Court of Appeal, which upheld the decision of the trial court.

The plaintiff and defendants hereinafter referred to respectively as appellant and respondents have through their respective counsel filed and exchanged briefs of argument and at the hearing of the appeal, learned counsel adopted the briefs with oral submissions to highlight some issues therein.

In the appellant’s brief, the following four issues were identified for determination –

“D1 Whether considering the pleadings and evidence of the parties given at the trial, plaintiff discharged the burden required in law to entitle him to be adjudged the owner of the land in dispute

D2 Whether the lower court was right in holding that the land in dispute is situate at Ose-motor and not Egbuoma, and thereby holding as per judgment of the trial court that the boundaries were not proved and consequently dismissed the appellant’s case.