Mba Orie & Anor V. Okpan Uba & Anor (1976)

LawGlobal-Hub Lead Judgment Report

A. O. OBASEKI, Ag. J.S.C. 

The appellants were defendants, in the court below – the High Court of the former East Central State holden at Umuahia, to a claim instituted by the respondents for:”(a) A declaration that the plaintiffs as the lineal descendants of Nna Okpan Uba, who was the first person to bring into his possession and ownership Ekike, Ugwu-Otugba and Ngele-Aturu lands are by Nkporo Native Law and Custom entitled to half share of farm strips in any year these pieces or parcels of land are farmed.

(b) 40 (forty pounds) being half the total rental value of these lands farmed this year (1971) by the defendants who excluded and denied the plaintiffs their right”.
The 2nd appellant was on his own motion joined as 2nd defendant.

The action came up for hearing before Aniagolu, J. (as he then was), who after hearing evidence adduced by the 1st plaintiff and his witness and hearing the defendants electing to rest their case on the evidence so adduced, gave a considered judgment in which (1) he granted the declaration of right to farm, but only on a smaller area than that claimed in the first arm of the claim (i.e. claim (a) and (2) he dismissed the second arm of the claim.

The declaration was made by the learned trial Judge in the following terms:

“The court is satisfied, on the evidence that the plaintiffs are entitled to farm 1 3/4 part of each of the land in dispute in this case, each farming season in which the particular land is being farmed, leaving 2 1/4 part to the defendants’ family and that this ratio approximates to 7 to 9-7 parts to the plaintiffs and 9 parts to the defendants’ family.

The plaintiffs have discharged the onus of proof placed on them in respect of this proportion.  Accordingly, it is hereby declared that the plaintiffs as the partrilineal descendants of Nna Okpan Uba, in accordance with the Native Law and Custom of Nkporo, are entitled to farm 1 3/4 part of each of the three lands Ekike, Ugwu-Otuguga and Ngele-Aturo lands clearly shown and delineated in the plaintiffs plan, Exhibit 1, as against the defendants 2 1/4 part.  This is approximately 7 to 9 for the plaintiffs and defendants respectively”.

Against this declaration, this appeal has been brought on the following grounds:

“(1)  That the learned trial Judge erred in law in making a declaration in favour of the plaintiffs not in terms of their pleadings, there being no amendment of the said pleadings at any time before judgment.
(2)    That the learned trial Judge erred in law in making a declaration against the defendants, a declaration which would affect the interests of other members of the matrilineal family of the 1st defendants the Nde Ngbocha family in spite of the evidence led by the plaintiffs that there were other members of the said Nde Ngbocha family living at Nkporo at the time of the suit who were not parties to this suit”.

It was common ground and no issues were raised by the pleadings as to

(1)The identity of the land – the subject-matter of the action

(2) The fact that the land was originally acquired by purchase by Nna Okpan Uba.

(3) That the title to the lands bought by Okpan Uba devolved on Okpan Uba’s maternal family when Okpan died.

(4)That 1st defendant became head of the matrilineal family although defendants gave the name of the family as Biasu instead of Nde Ngbocha.