Emmanuel Okpala Igwego & Ors Vs. Fidelis Ojukwu Ezeugo & Anor (1992)
LawGlobal-Hub Lead Judgment Report
E. O. OGWUEGBU, J.S.C.
The appellants were defendants in the High Court of the then Anambra State holden at Awka. They were sued by the respondents who were plaintiffs in the said court. The respondents on record brought the action for themselves and as representing the members of Ezeugo sub-family of Umu Eze Family in Adazi-Ani, Anambra State.
The appellants were sued in their personal capacities.
In paragraph 18 of the Statement of Claim, the respondents claimed from the appellants jointly and severally as follows:-
“(a) Declaration of title under Customary Law to the plaintiffs’ pieces or parcels of land known as EZEUGO lands situate in Umueze family of Adazi-Ani and clearly shown on the Plan E/GA.1054/75;
(b) N200.00 (Two Hundred Naira) damages for trespass;
(c) Perpetual injunction restraining the defendants, their servants and/or agents from further entry into the said land.”
The action was tried on pleadings filed and exchanged by both parties. After hearing evidence the trial Judge entered judgment against the appellants in all the three legs of the claim. They appealed to the Court of Appeal and their appeal was dismissed. They have now appealed to this court against that judgment. The appellants and the respondents filed their amended briefs of argument on 10th June and 17th September, 1991 respectively.
The appellants filed eleven grounds of appeal. In their amended brief of argument they identified eight issues for determination in the appeal, namely:-
“(1) Was the Court of Appeal right in holding that the defendants/appellants were estopped per rem judicatam by the decision of the so-called Peace Committee or L.C.D.C. (Local Civil Defence Committee) or the Committee on War Effort
(2)(a) Was the Court of Appeal right in holding, that UKU-NA-UMUOGU decided nothing when the dispute between the parties was referred to it for arbitration
(b) If the answer to question (2)(a) is in the negative, were the plaintiffs/respondents not estopped per rem judicatam by the decision of the Uku-na-Umuogu from maintaining or prosecuting the present suit
‘(3) Was the Court of Appeal right in confirming the judgment of the trial court on the traditional history of the parties
(4)’ Was the Court of Appeal right in holding that the trial court was not affected or influenced in its judgment by the issue of abandonment which the trial court itself introduced into the case
(5) Was the Court of Appeal right in holding that the plaintiffs/appellants pledged one of the two parcels of land in dispute to D.W.8
(6) Was the Court of Appeal right in its application of S.45 of the Evidence Act to this case
(7) Was the action instituted by the proper plaintiffs
(8) Did the plaintiffs/respondents prove their case”
The respondents while adopting all the issues identified by the appellants formulated an additional issue for determination in the appeal, namely:-
“Was the Court of Appeal right on the evidence and findings of the trial court in holding that the defendants/appellants were bound by the decision of the Peace Committee and was this view of the Court of Appeal justified by the evidence”
The case of the respondents at the trial court was that the two portions of land which are in dispute are situate in Umueze family and they belong to them; that these two portions of land are entirely surrounded by the land of Umueze in general and other members of Umuezeugo or Ezeugo sub-family in particular. The respondents further stated that the appellants have no land anywhere near the land in dispute.
It was their case also that when the children of Eze from whom Umueze family descended shared their father’s land, their grandfather- Ezenwugo – got the lands in dispute as his own share. On his death, his son Ezeugo inherited the land from him. Ezeugo was the grandfather of the respondents.
Ezeugo had a sister by name Ikwuamaehi who was married into the appellants’ family. She got a son called Ezemba before her husband died. Ikwuarnaehi returned to her maternal home with her only son Ezemba because the relations of her late husband were maltreating her.
The respondents’ grand father Ezeugo took them and allowed them to farm on the lands in dispute on the understanding that the lands would revert to Ezeugo whenever Ezemba decided to return to his father’s home.
The said Ezemba subsequently invited four of his half brothers to live with him on one of the portions of the land in dispute. Ezemba and three of his half brothers died leaving Okafor Ekwuno who voluntarily left the land and went back to live with his people -the appellants. It was the respondents’ case that thereafter, the land reverted to them. That notwithstanding, the appellants continued to come from their family of Umunafor and used force to farm on the land which had reverted to the respondents on the ground that their relations had lived on the lands in dispute.
The respondents reported the appellants’ acts of trespass to the Adazi-Ani Peace Committee in 1969.
The Peace Committee heard both parties and their witnesses. The Committee found in favour of the respondents and awarded title to the lands in dispute to the respondents.
The respondents pleaded and relied on the findings of the Committee at the trial. The said decision which was reduced into writing was tendered in evidence as Exhibit ”B”
The appellants’ case is that the lands in dispute are not situate in Umueze but in Umunafor – their family – and that the two portions of land in dispute belong to them – the appellants.
It was their case also that their relations once lived, died and were buried on the disputed lands and that the ruins of their houses and graves are shown on their survey plan – Exhibit “C”
The appellants maintained that Ezemba’s mother was in no way related to the respondents and never returned with her son to be settled by the respondents on the lands in dispute.
The appellants contended that the respondents are strangers in Adazi-Ani. That they are descendants of Ezeukonwugo – a blacksmith who came from Awka and was accommodated by one Ejiofor – a member of their family. That Ejiofor granted him a portion of land where he lived and carried on his trade as a blacksmith.
The appellants denied submitting to the arbitration by the Peace Committee relied upon by the respondents. They on their part relied on the arbitration by Ukana-Umuogu Community and that of Barrister N.N. Anah which found in their favour.
This is the summary of the case put up by each party at the trial.
As stated earlier in this judgment, the Court of Appeal dismissed the appeal of the appellants and affirmed the judgment of Umezinwa, J. of the blessed memory.
As to issues one and two, the learned counsel for the appellants submitted that the courts below were wrong in holding that the Peace Committee was set up by the Adazi-Ani Town Union during the Civil War to adjudicate on or settle civil disputes. Counsel also submitted that the courts below were wrong in holding that the appellants were estopped per rem judicatam by the decision of the Peace Committee.
He contended that the Adazi-Ani Town Union had no legal authority to establish a body with judicial authority and that the Peace Committee or the Committee on War Effort was not a customary body with power to determine disputes between the parties. He further stated that there is a customary body in Adazi-Ani known as Uku-na-Umuogu which has authority over the parties to this case.
Learned counsel argued that the Peace Committee was an illegal body, its purported decision was also illegal and not binding on the appellants and could not operate as estoppel per rem judicatam.
He referred us to the case of Samuel Oguebie & Ors. v. Chukwudile Odunwo ke & Ors. (1979) 3-4 S.C.58.
It was submitted that even if the Adazi-Ani Town Union could lawfully set up the Peace Committee to settle civil disputes, the purported settlement was null and void because those who took part in the said settlement were not all appointed by Adazi-Ani Town Union. The appellants further submitted that even if the Peace Committee attempted to settle disputes between people of Adazi-Ani any such attempt as in this case could not constitute estoppel per rem judicatam.It was further submitted that the 1st, 3rd and 4th defendants who are members of Umuezeukwu (Umuezeugu) family did not take part in the settlement and the 2nd and 5th defendants who represented Umudiokpala at the meeting of the Committee withdrew before the end of the settlement.
The appellants also contended that all the families of Umueze claimed the northern portion of the land in dispute as theirs at the arbitration and in the present action, the sub-family of Umuezeugo claimed to be the sole owner of both parcels of land. The appellants stated that the parties in the alleged settlement by the Peace Committee and those in the present action are not the same and therefore, the question of estoppel per rem judicatam did not arise from the said peace settlement. Mr. Ezeuko learned counsel for the respondents in reply to issues one and two referred us to the evidence of P.W.4 who was the Chairman of the Peace Committee as well as the evidence of D.W.2. He stated that the parties voluntarily submitted their dispute to the Peace Committee and both parties appeared before the Committee and stated their cases. In the case of D.W.2, he testified that the Committee consisted of members drawn from every village in Adazi-Ani. He and the 2nd defendant (deceased) represented Umudiokpala and Umuezeukwu families.
As to estoppel, learned counsel stated that all the necessary conditions were present. He referred to the evidence of D.W.2 to the effect that he and the 2nd defendant represented the appellants’ families of Umudiokpala and Umuezeugwu before the Committee. He maintained that the parties and the issue (the ownership of the subject matter) are the same both before the Peace Committee and the trial court. It was his submission that the trial court and the Court of Appeal found that the parties stated their cases fully on voluntary submission and that they were aware that the decision of the Committee was in writing.
As to the settlement by Uka-na-Umuogu, learned counsel submitted that the courts below found that the arbitration by Uka-na-Umuogu was inconclusive and from the evidence accepted by the trial court and the Court of Appeal, Uku-naUmuogu made no findings of fact as to which of the parties own the land over which they arbitrated. He urged the court not to disturb the findings of fact made by the courts below. He cited the cases or Sobakin v. The State (1981) 5 S.C.75 at 78 and Overseas Construction Company. Ltd. v. Creek Enterprises (Nig) Ltd. (1985) 3 NWLR (Pt. 13) 407 at413-414 among others.
On issues 3, 4, 5 and 8 appellants’ Senior Counsel submitted that the burden of proof lay on the respondents throughout in the action for declaration of title, trespass and damages. He stated that P.W.1 is a member of Umuezeugo sub-family of Umuezejimofor family of Umueze, P.W.2 from Isiekwubu sub-family of Obinato family in Umueze while P.W.3 is from Ikenga Enu sub-family of Umueze. He stated that P.W.2 and P.W.3 who are not members of Umuezego sub-family of Urnuezejimofor family are not competent to give evidence of the traditional history of the lands in dispute. In the circumstances, the courts below were wrong in relying on their evidence of traditional history in coming to their decisions.
He contended that under section 44 of the Evidence Act, only members of a family can give evidence of traditional history in respect of the land in dispute and the four persons who lived with Ezemba on the land in dispute were not proved to be the brothers of Ezemba or relations of the late husband of Ikwuamaehi.
The learned appellants’ Senior Counsel referred to paragraph 7 of the statement of claim and the evidence of P.W.1 and stated that inheritance in Adazi-Ani is from father to son and that the respondents did not plead any inheritance of the lands in dispute by their fathers or by them through their respective fathers.
Mr. Egonu S.A.N. said that the courts below failed to consider all the issues touching on traditional history before coming to their decisions in the case.
He submitted that the traditional history of both parties was in conflict and should have been tested on the background of proved or accepted facts, for example, the use and occupation of the lands in dispute up to 1974. The learned Senior Counsel referred us to the case of Kojo II v. Bonsie & Ors. (1957) 1 W.L.R. 1223 at 1226 and Agedegudu v. Sanni Ajenifuja 7 Ors. (1963) 1 All NLR 109; (1963) 1SCNLR 205.
On issue 6, learned Senior Counsel contended that members of defendants/ appellants’ family were for many years and up to the institution of this action in 1975 in exclusive possession and use of the lands in dispute. That by Section 145 of the Evidence Act, the members of the defendants’ family must be deemed to be the owners of the lands in dispute and the onus was on the plaintiffs/respondents to prove that the appellants were not owners of the said lands. He submitted that Section 45 of the Evidence Act does not come into play in this case and if it were to apply, it should be in favour of the appellants’ family.
On issue 7, learned Senior Counsel submitted that before the Peace Committee or Committee on War Effort, the entire people of Umueze including the respondents claimed the northern parcel of lands in dispute as belonging to the people of Umueze as a whole. The respondents cannot now claim the northern parcel of the lands in dispute as the lands of Umuezeugo sub-family and they are therefore not the proper plaintiffs in this case.
We were urged to allow the appeal, set aside the decisions of the courts below and dismiss the plaintiffs/respondents’ claim.
In his written and oral submissions, the learned counsel for the respondents stated that the Court of Appeal was right in upholding the judgment of the trial court which made various findings of fact based on the evidence led on three main issues on which the case was fought, namely, (i) traditional history, (ii) location of the land and the application of section 46 of the Evidence Act, Cap 112 Vol. VIII Laws of the Federation of Nigeria, 1990 and (iii) arbitration by the Peace Committee.
He referred to paragraphs 14, 15 and 16 of the Statement of Claim which the appellants traversed in paragraph 16 of their Statement of Defence and the evidence of P.W.4 (Chairman of the Peace Committee) who testified that both parties voluntarily submitted their dispute to the Committee for settlement. The Committee was made up of representatives of the entire Adazi-Ani Community.
We were also referred to the evidence of D. W.2 -a member of the appellants’ family and Exhibit “B”the decision of the Peace Committee dated 29th March, 1969.
Learned counsel also submitted that the conditions to ground the plea of estoppel per rem judicatam were present. That this case should be distinguished from the case of Ogubie & Ors. v. Odunwoke & Ors. (1979) 3-4 S.C. 58.
On traditional evidence, counsel referred to paragraphs 7-12 of the Statement of Claim and the evidence of P. W.1, P.W.2 and P.W.3. Learned counsel stated that the appellants while attacking the evidence of P.W.2 and P.W.3 did not take into consideration the pleadings and the evidence. That while the respondents are members of Umuezeugo sub-family, they (respondents) as well as P.W.2 and P.W.3 belong to Umueze family.
On the evidence of P.W.2 and P.W.3 as well as the parentage of Ezemba, the learned counsel for the respondents stated that both the trial court and the Court of Appeal agreed that P.W.2 and P.W.3 were competent witnesses and that the mother of Ezemba was a member of the respondents’ family. Learned counsel finally argued that the complaints in issues 3, 4, 5 and 8 are against the evaluation and assessment of evidence and the findings of fact arrived at by the courts below.
On issues 6 and 7 counsel contended that the grant was one subject to condition – that the appellants would remain and live on the land as long as they continued to be in possession. Since the courts below accepted the evidence on the conditions for the grant, Section 145 of the Evidence Act was inapplicable and section 45 of the said Act applied in favour of the respondents on the accepted evidence that the land in dispute is surrounded by the lands of the respondents’ family of Umueze and the sub-family of Umuezeugo.
As to whether the action was instituted by proper plaintiffs, counsel for the respondents stated that the case of the respondents before the Peace Committee and the trial court was that the northern portion of the land in dispute belongs to them. Their brothers of Umueze who never claimed title to the land, supported them before the Peace Committee. We were referred to the evidence of P.W.2 who testified that the respondents are the rightful owners of the land and that Umueze were protecting their reversionary interest. He urged us to dismiss the appeal and uphold the concurrent findings of fact made by the courts below.
At the hearing of the appeal both learned counsel adopted their amended briefs of argument filed on 10th June and] 7th September, 1991 respectively.
On the issue of traditional evidence, the Court of Appeal found that the trial Judge resolved the conflict in favour of the respondents. The Court of Appeal also held that the conclusions reached by the learned trial Judge were based on acts as established by the evidence adduced by the respondents and supported in some measure by the evidence of some of the appellants’ witnesses (D.W.5, D.W.6 and D.W.8).
I agree with the Court of Appeal that the learned trial Judge adopted the right approach and made unimpeachable findings based on the evidence before him. I have no reason to disturb the conclusion reached by the Court of Appeal.
On the location of the land in dispute, the Court of Appeal found that from the totality of the evidence, to get to the land in dispute, the appellants would pass through the lands of the boundary men who are all from Umueze – the family of the respondents which is contrary to the case of the appellants that the land in dispute is situate in Umunafor.
From whatever angle one looks at the entire case, the findings of the courts below are heavily against the appellants. The Court of Appeal agreed with the trial court on the location of the land in dispute, the traditional evidence of the respondents and the fact that the evidence of D. W.5, D.W.7 and D.W.8 strengthened the case of the respondents.
The issues raised in this action at the court of trial, the Court of Appeal and this court are essentially issues of fact. This appeal can therefore be disposed of without recourse to the arbitration by the Peace Committee which no doubt found in favour of the respondents as recorded in Exhibit “B”
Both the High Court and the Court of Appeal have made concurrent findings of fact in favour of the respondents, viz: that the respondents are from Umueze that the mother of Ezemba was a member of the respondents’ family given in marriage to a member of the appellants’ family. Both courts also found that because Ezemba’s mother was maltreated by the members of her husband’s family after her husband’s death, she returned to her brother Ezeugo with her only son Ezemba. Ezeugo settled Ezemba and his mother on the two portions of land in dispute with a clear understanding that the land would revert to the respondents’ family whenever Ezemba grew up and decided to go back to his family of Umunafor.
The courts below also found as a fact that Ezemba later brought four of his relations to live with him. When Ezemba and three of his four relations died, they were buried at Umunafor – the appellants’ family – and the surviving member of the appellants’ family named Okafor Ekwuno voluntarily left the land and returned to his family Umunafor to settle. The land reverted to the respondents and they resumed possession.
On the location of the land in dispute, the High Court and the Court of Appeal found as a fact that to get to the land in dispute, the appellants would pass through the lands of the boundary men who are all from Umueze family of the respondents.
This finding contradicted the contention of the appellants that the land in dispute is in Umunafor. The respondents evidence on the location of the land was again strengthened by D.W.8 who testified that the appellants’ live far away from the land in dispute and that the respondents live near the said land.
If the lands bordering the land in dispute belong to members of Umueze family, the application of Section 46 of the Evidence Act, Cap. 112 Vol. VIII Laws of the Federation of Nigeria, 1990 by the trial court cannot be successfully challenged by the appellants. See Umeojiako v. Ezenamuo (1990) 1 NWLR (Pt.126) 253.
On the use of the word “abandoned” by the trial Judge which is made an issue by the appellants, the learned Justices of Court of Appeal said that the contention is a storm in a tea pot. In my opinion the use of the word “abandonment” by the learned trial Judge in his judgment is a non-issue.
The D.W.2 (Anumba Ikpala) in answer to cross-examination at page 35 from lines 14-21 of the record stated:-
“It was Okafor Ekwuno that left the land alive and went to join his relations at Umunafor. There is no member of our family that lives on the land in dispute Okafor Ekwuno left the land in dispute about 13 years ago.”
P.W.1 (Fidel is Ezeugo) in his examination-in-chief at page 13 lines 9-12 testified as follows:-
“Okafor Ekwuno on his own left the land and went back to live at Umunafor. When he vacated the land, we took back our land.”
The appellants’ possession of the land in dispute was based on grant. Ezemba and his mother were to live and farm on the lands but whenever Ezemba grew up and returned to his own family the land would revert to the owner. When the surviving member of Ezemba’s family, vacated the land voluntarily, it naturally reverted to the respondents in view of the condition attached to the grant. The long and the short of it is that the land reverted to the owners (the respondents) when Okafor Ekwuno vacated it and joined his kith and kin in Umunafor. The use of the word “abandon” by the learned trial Judge in his judgment did not advance the case of the appellants. The complaint here relates to mere use of words and nothing more.
Both the trial court and the Court of Appeal did not see any substance in the issue of pledge of part of the land to D.W.8. Had Ezemba and his relations continued to live and farm on the land, their tenants would not have been disturbed. In any case, if the appellants put D.W.8 on the land, the averment in paragraph 20 of the statement of defence and the evidence of D.W.8 did not throw any light on the nature of the tenancy. What is more, this witness (D.W.8) who testified that Oguafor pledged a portion of the land in dispute to him and his late cousin did not even know whether Oguafor the pledgor is related to Okafor Ekwuno – the last survivor of Ezemba clan who vacated the land.
In issue 7 it was complained that plaintiffs are not the proper parties to the proceedings because the entire Umueze family claimed the northern portion of the land now in dispute during the arbitration whereas Umuezeugo sub-family are the plaintiffs in the present action. The larger unit (Umueze) did not claim title to the land both before the Peace Committee and the trial court. From the evidence of P.W.2 at the trial, it is clear that the larger unit supported Umuezeugo sub-family (the plaintiffs) to safeguard their reversionary interest because if members of Umuezeugo sub-family die without any issue, the land in dispute would revert to the larger unit Umueze.
In the light of the above, the action was instituted by proper plaintiffs. The role of the other members of Umueze family in the proceedings was supportive. They did not want their reversionary interest to be defeated if they stood by.
This court will not in the circumstances of this case interfere with the concurrent judgments of the High Court and the Court of Appeal on essentially issues of fact there being no established miscarriage of Justice or violation of some principle of law or procedure. See National Insurance Corporation of Nigeria v. Power & Industrial Engineering Co. Ltd. (1986) 1 NWLR (Pt.14) 1 at 36. Enang v. Adu (1981) 11-12 S.C. 25 at 42, Nwagwu v. Okonkwo & Ors. (1987) 3 NWLR (Pt.60) 314 at 321.
For all the reasons set out above, I dismiss the appeal and affirm the decisions of the courts below. I award N1,000.00 costs to the respondents.
Other Citation: (1992) LCN/2506(SC)
