Kele V Nwerebere (1998)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C.

This appeal is from the judgment of the Court of Appeal, Enugu Division delivered on 6th June, 1989. The proceedings leading to the appeal started with two suits filed in two separate customary courts in the then Eastern Nigeria. Both suits were transferred to the High Court of Eastern Nigeria holden at Owerri. They were later inherited by the Okigwe Judicial Division of the High Court of the then East Central State and were numbered as HO/1/71 and HO/2/71.

The plaintiffs in Suit No. HO/1/71 who are the respondents in this court are the people of Ezieke Na Owerre of Akpukpa in Uturu while the defendants in the same suit are the appellants before us and are the people of Amachara, Oguduasa in Isuikwuato. The parties changed positions in Suit No. HO/2/71. Both parties were in Okigwe Division of Imo State but are now in Abia State following the creation of that State. The two suits were consolidated for hearing with the consent of the parties. The plaintiffs in Suit No. HO/1/71 became the plaintiffs in the consolidated suits and the defendants in the said suit who are the plaintiffs in suit No. HO/2/71 became the defendants. The suits were prosecuted and defended in representative capacities.

In Suit No. HO/1/71, the plaintiffs’ claim before the High Court against the defendants jointly and severally is as follows:

“(a) A declaration of ownership of AKPAKA land situate at Akpukpa, Uturu, Okigwe, more particularly delineated and verged pink in a Plan No MEC/14/66 already filed with the Statement of Claim,

(b)30 pounds being arrears of rent for 1963,1964 and 1965.

(c) A perpetual injunction restraining the defendants, their agents and servants from entering the said land.”

The plaintiffs’ claim in Suit No. HO/2/71 is as follows:

“1. Declaration of title to the land shown and delineated in pink in plan No. UND/51/66 filed by the plaintiffs in this suit, which land is called “Akpata”, Ogboko land” and “Alambula” in its different portions.

2. An injunction restraining the defendants from trespassing or interfering with the plaintiffs’ ownership and possession of the land.”

At the close of pleadings, the consolidated suits proceeded to trial and in the end, Obi-Okoye, J. (as he then was) in a reserved judgment, made a declaration of title in favour of the plaintiffs in Suit No. HO/1/71, granted an order of injunction against the defendants and dismissed Suit No. HO/2/71 in its entirety. The plaintiffs’ claim for arrears of rent was dismissed. The defendants in the consolidated suits who are the people of Amachara, were dissatisfied with the decision of the learned trial Judge and appealed to the Court of Appeal, Enugu Division. That court dismissed their appeal. Aggrieved by the decision, they have further appealed to this court.

From the five grounds of appeal filed, the following issues were identified by the defendants/appellants for determination:

“1. Whether the Court of Appeal was right in holding that Exhibit 1 was a conclusive act of possession and whether there was in fact oral evidence of the terms of settlement in Exhibit 1 and if so whether such oral evidence was admissible.

2. Whether having regard to the pleading and testimonies of the witnesses the findings of the learned trial Judge that the appellants did not call their boundary men whilst the respondents called theirs and that there was conflict between the evidence of the appellants to the effect that they do not live on the land in dispute but only farm thereon and their pleading on the issue were not against the weight of evidence before the court.
3. Whether the Court of Appeal can grant the relief of trespass not claimed by the respondents and whether the Court of Appeal having found that the appellants are customary tenants can nevertheless hold them to be trespassers without an order of forfeiture having regard to the pleading, evidence and relief claimed by the respondents.
4. Whether the Court of Appeal having found the appellants were customary tenants can grant the relief of injunction to the respondents without the respondents first asking and obtaining an order for forfeiture of the customary tenancy.”

The plaintiffs/respondents on their part submitted the following five issues for determination:

“1. Whether having regard to the issues raised on the appeal, the Court of Appeal was right in affirming the decision of the High Court over Exhibit “1”.