John Nwachukwu & Anor V. Micheal Abara & Ors. (1976)

LawGlobal-Hub Lead Judgment Report

S. SOWEMIMO, J.S.C. 

This appeal is against the judgment of Ikpeazu, J., delivered on 14th November, 1973, at the High Court of the East, Central State sitting at Owerri in suits HOW/25/72 & HOW/24/73, which were consolidated and tried together.  The claims of the plaintiffs in suit HOW/25/72 were dismissed but the claims of the defendants who were plaintiffs in Suit HOW/24/73 were granted.  It is against the judgment in the consolidated suits that this appeal was brought.

The plaintiffs in suit HOW/25/72 sued “for themselves and as representing the community of Umuzie Nguru” and the claims are: –

(a)Title to that piece and parcel of land verged GREEN in plan No. UN.D/9/72 filed by the plaintiffs and known as and called “MKPORO” or “MKPORO UMUEZIE NGURU” in Mbaise within Owerri Judicial Division with annual rent of ‘a34. (four pounds)

(b)100pounds (one hundred pounds) special and general damages made up as follows: –

1. Special Damages
One Uhi tree value   35pounds…   35pounds:=:=

One Uhi tree value     15pounds..  15pounds:=:=

2. General Damages         …. 50pounds:=:=
Total             100pounds:=:=

(c)Injunction permanently restraining the defendants their servants, agents and/or workmen from further acts of trespass and from dealing with the land in dispute in a manner inconsistent with the interest of Umuezie Community.”

The defendants were sued individually.

The 1st defendant is the plaintiff in suit HOW/24/73, and sued as defendants the plaintiffs in suit HOW/25/72 individually and not in their representative capacity. The claims in that suit are:

(1)Declaration of title to a piece of land known and called “UHU-ETITI” situate at Umuezie Nguru Mbaise as shown in Plan No. EC. 273/72 filed with this Statement of Claim.

(2)Injunction restraining the defendants their servants and agents from further acts of trespass on the said land.”

Because the two suits were consolidated, the plaintiffs in the first suit were referred to as plaintiffs in the judgment and the defendants were similarly referred to.

The claim of the plaintiffs is that Nkporo land is a forest land communally owned by four kindreds namely, Umuelee, Unwe, Umuasigo and Umuchokocha whose common ancestor was one Ezie.  There are economic trees in the forest land and from time immemorial, the land was never cleared, brushed, set on fire or cultivated.  It was reserved for a juju called Agwuishi as a sacred dwelling place and shrine and it is said to be worshipped by all the people.  As to acts of user, the plaintiffs claimed that both the people and juju priests collect fruits, herbs and roots.  The juju priests were alleged to have sold some economic trees in 1960 and the proceeds used to purchase some zinc sheets as roofings for juju shrines.  It was also claimed that in 1934 the plaintiffs planted some Ukpo trees on the boundaries with their neighbours.

As to the cause of action, the plaintiffs claimed that in 1972, the defendants entered the Nkporo land, cleared a large area and cut down some economic trees.  Fire was later set on the forest land, and this destroyed the rest of the economic trees on the land.

In their defence, the first three defendants claimed to be members of the Umuchokocha kindred and the remaining four defendants were described as labourers who came from Enyiogugu and had no interest in the matter.  They claimed that they inherited a large area of land known as UHU-ETITI from their ancestor one Chokocha, and that the area called Nkporo land formed a portion of their own land.  They claimed that their forefather Chokocha was one of the four children of their common ancestor Ezie, and that UHU-ETITI land was his own share to the land given to him on the death of Ezie. The defendants, i.e., Umuchokocha people, denied plaintiffs’ allegation of possession and claimed exclusive possession.  They also claimed that the Agwuishi juju belonged to them.

In HOW/24/73, the Umuchokocha as plaintiffs claimed their title to UHU-ETITI land through their forefather Chokocha a son of Ezie. They alleged that their forefather reserved a portion of Nkporo land as forest reserve after he had cultivated other portions of it. They claimed to have felled timber trees in the forest generally to the knowledge and non-interference by the two defendants who were sued individually.  They alleged that the claim of the defendants arose because of the paucity in their – Plaintiffs’ – numbers due to losses during intervene local wars, and the jealousy of the defendants because of the large area of Umuchockocha land. The defendants denied these allegations and claimed that various portions of the land in Nkporo belonged to other individuals other than plaintiffs, and who cultivated them.

After a review of the evidence called by both parties, and what we considered to be a proper evaluation of the whole evidence, the learned trial Judge stated thus: –
“The main question to resolve in this case in reaching a decision seem to be the following:-

1.How was Nkporo acquired, if at all, by whom, from whom and how

2.How was the rest of UHU-ETITI acquired, by whom, from whom and how

The answers to the above questions will depend on which of the two conflicting traditional accounts given by the contending parties is acceptable.”

The Judge then proceeded to compare the issues raised in the pleadings with the evidence adduced in support.  In the result, he came to the following conclusions: –

…………………
“I have had a very close and careful examination of the evidence on both sides involving the Uhu-Etiti land which includes the Nkporo land and I am perfectly satisfied that the historical account given by the plaintiffs in Suit “A” is ridiculous and absurd.  I am perfectly convinced of the truth of the account given by the defendants of Umuchokocha.  I believe them that on the death of their ancestor Ezie the four sons divided their lands and that their fore-father Chokocha secured the land comprised in Exh. ‘B’ and verged green therein.” ……………………
“I am convinced that the Nkporo forest was not reserved by the community of Umuezie as their communal property but that it was reserved by the great grand father of the 1st defendant Michael Abara as a forest to yield profit for them in timber. “……………………..

“I do not believe that the Agwuishi juju is jointly owned by the four kindreds of Umuezie or that they worship it communally or that it is on communal land.  What I am convinced about is that the Agwuishi juju to the east of Nkporo land verged in pink in both plans is the absolute property of Umuchokocha kindred and that it is worshipped by themselves alone with the 2nd defendant as the sole juju priest and I reject the evidence that the P.W.9 Ibezim Njoku is a juju priest of Agwuishi.  I equally reject the evidence that either the P.W.9 or the community took interest or played any part in the erection of the Agwuishi juju house at any time or that the community gave authority to the 2nd defendant alone or jointly with P.W.9 to dispose of some economic trees on the land and utilise the proceeds to build the juju house. I do not believe the evidence also that the Ukpo trees were planted around Nkporo land in 1934 by the community to secure the land against encroachment.

That evidence was for good measure only. Neither the traditional history nor the evidence of user adduced by the plaintiffs in Suit “A” is of any assistance to their case. All the evidence of user adduced under the two headings is worthless and avails nothing. Short of being positive concoctions engendered by avarice and greed, the evidence adduced by the plaintiffs affords them no basic for success in their case. Coming to the case of the plaintiffs in Suit “B” I have clearly stated that I prefer their traditional history to that of their opponents.  

Even at the risk of repeating myself I recapitulate and say that I am convinced that the Uhu-Etiti land formed part of the land of Ezie the ancestor of the parties, that his four sons shared his lands when he died and that the Uhu-Etiti land was in that process acquired by CHOKOCHA the forefather of the plaintiffs in Suit “B”, and that it has descended through a line of successors to the present Umuchokocha descendants. I am also convinced that the Nkporo land was reserved as forest by Umuchokocha people to produce valuable trees for them and that it was cleared by the defendants’ father in 1936 when he and 2nd defendant farmed on it. “………………
………….

” I am not in any doubt at all but that the Uhu-Etiti land is the homestead of the Umuchokocha people notwithstanding the fact that they cannot effectively establish habitation over the whole area at any one time in view of their number.  It is my finding in this case that the entire Uhu-Etiti land is the absolute property of the Umuchokocha kindred by inheritance from the ancestor Ezie and that no other kindred of Umuezie village family or member thereof has any right to the land or part thereof except in so far as any such right is or could be conferred by Umuchokocha people or their accredited representatives. I believe the evidence of the plaintiff Michael Abara that all the people on the land are those who were merely permitted by his people to be there.”…………

“On the whole I dismiss the plaintiffs’ case in Suit “A” with N300 to the defendants of Umuchockocha defendants; I uphold the case for the plaintiffs in Suit “B” and award them a declaration of title to all that piece and parcel of land verged green in their plan Exhibit ‘B and known as Uhu-Etiti which according to my finding was acquired by them from their ancestor to the exclusion of the other kindreds of Umuezie community.

“I also decree an injunction to restrain the two defendants in Suit “B” their servants, agents from any further trespass to the Uhu-Etiti land.”

At the hearing of the appeal before us learned counsel for the appellants drew our attention to the eight(8) grounds of appeal filed.  The complaint on ground(g) dealing with the award of costs was not argued.  The arguments canvassed before us were directed against the findings of fact by the learned trial Judge and no issue of law as complained in the several grounds of appeal were raised.  In the circumstances we did not call on the counsel for the respondents to reply.

We are quite satisfied that the learned trial Judge had properly evaluated the evidence before him and came to a correct conclusion.  We see no reason whatsoever on the arguments addressed to us to justify any interference or disturbance of the judgment of the lower court.  We consider that the appeal lacks merit and it is hereby dismissed.  The judgment of the lower court in the consolidated suits is hereby upheld and confirmed. The appellants will pay to the respondents, the Umuchokocha people, costs assessed at 180 Naira.

SC.457/1974