Hyacinth Anyanwu V. Robert Achilike Mbara & Anor. (1992)

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NNAEMEKA-AGU, J.S.C.

This is a further appeal by the defendant, Hyacinth Anyanwu, against the judgment of the Court of Appeal, Enugu Division which had on the 21st April, 1988, dismissed his appeal against the judgment of Nwogu, J., sitting in an Owerri High Court.

One James Kamalu Mbara had, in a suit commenced by a writ of summons, sued Nwogu Anyanwu for the following reliefs:-

“(a) Declaration of title to the parcel and piece of land known as and called “NWAOKPU” situate at Libie Umunahu, Uratta in Owerri Judicial Division with annual value of 10 pound.

(b) 200 pound damages for trespass unto the said land.

(c) An injunction permanently to restrain the defendant, his servants, agents, and or workmen from further interference upon the said land.”

The appellant was later substituted for the defendant and the respondents for the plaintiff, the original parties having died. The learned trial Judge in his judgment held that although the claim before the court was for a declaration of title followed by consequential reliefs yet,

“At a very careful and close examination of the facts of this case, and after hearing both parties to the dispute, it appears to me the real question in controversy is the ascertainment of the boundary between the plaintiffs’ village of Libie and the defendant’s family of Ihitte.

Further he stated:

“From the pleadings, the plans and the evidence of the parties, the real issue between the parties is:-

(i) Whether the land in dispute is separated from Umunahu land on the northern boundary by Ovum immediately adjoining the residential quarters of the plaintiffs, i.e. Libie people in Umunahu Uratta in which case the area verged pink in defendant’s plan, Exhibit ‘B’ and designated land in dispute also forms part of the defendant’s land, or

(ii) Whether the plaintiffs’ land extends over the northern boundary (where the defendant says there is an Ovuru which forms the boundary between plaintiffs and the defendant) immediately adjoining the residential quarters of the plaintiffs, in which case the area shown on Exhibit ‘A’ as the land in dispute which is clearly across the farm land forms part of the plaintiffs’ land and therefore belongs to the plaintiffs.”

He resolved the issues in favour of the plaintiffs and granted them the declaration and other reliefs they sought. On the defendant’s appeal to the Court of Appeal, Enugu Division, that Court. per Omosun, J.CA., in his lead judgment with which Olatawura, J.CA. (as he then was) and Onu, J.CA, agreed, dismissed the appeal.

The defendant has, therefore, further appealed to this Court. From the grounds of appeal filed, the learned counsel for the appellant, Chief Ahamba, formulated the following issues for determination:-