Nelson Nwosu Onwugbufor & Ors. V. Herbert Okoye & Ors (1996)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Enugu Division, which had on the 16th day of May, 1989 allowed the appeal by the defendants from the decision of Awogu, J. as he then was, sitting at Onitsha in the High Court of the former Anambra State.

The plaintiffs, for themselves and on behalf of the Uruokpala family of Amawa village, Ogbunike had instituted an action against the defendants claiming, as subsequently amended, as follows:-

“(a) Declaration that the plaintiffs are entitled to the Customary Right of Occupancy under Ogbunike Customary Law to the piece and parcel of land situate at Amawa in Anambra Local Government Area and commonly called Ubulu Land and shown on the plaintiffs’ plan and therein verged yellow.

(b) N1,000.00 damages for trespass.

(c) Injunction restraining the defendants, their servants and/or agents from further trespass on the said land.

(d) Forfeiture of the defendants’ tenancy on the land.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged. At the subsequent trial, both parties testified on their own behalf and called witnesses.

The plaintiffs case is that their family, known as and called the Uruokpala family of Amawa village, Ogbunike town in the Anambra State of Nigeria is the bona fide owner of the land in dispute verged yellow in their survey plan No. PO/E/116/78 dated the 31st December, 1978. The said plan was tendered and admitted in evidence at the hearing as Exhibit A. Whereas the plaintiffs are from the Amawa village, Ogbunike, the defendants come from a different village to wit, the Azu village of Ogbunike town. They claimed that the land in dispute known as and called “Ubulu” is situate in Amawa village and that it has been their property from time immemorial. In further support of their title to the said land, the plaintiffs claimed that they, and before them, their forefathers had exercised maximum and positive acts of ownership and possession over the same for a long period of time without any let or hinderance from the defendants or anyone else. They claimed that they, and before them, their fore-fathers farmed the land, reaped the fruits of their economic trees thereon and made customary grants of several portions thereof at various times to various tenants for residential and farming purposes on payment of annual tributes. These customary tributes comprise of 8 yams, 4 kolanuts and palm wine.

It is the plaintiffs case that the said tenants are mainly from the defendants Umuezemba family of Azu village, Ogbunike and included Okoye Oneze, the 1st defendant’s father, whose walled compound was granted to him by the plaintiffs several years ago.

On his death, his sons, the 1st and 2nd defendants continued to live on the said land let to their father by the plaintiffs. Other residential tenants such as the deceased John Ipim and Onyeagana lived on the land as plaintiffs tenants but later moved out and surrendered the reversion to the said plaintiffs. Their other residential tenants on the land included the late Agudosi, although his son, the 3rd defendant still lives on the portion granted to his late father. There are also P.W.3, Udenze Obeagha, the 4th defendant Clement Ikwuazom, Eziosa Nwafudalu and Humphrey Nwafudolu who are plaintiffs residential tenants on the land. They all paid customary tributes to the plaintiffs family. The land on which P.W. 3 lives was originally granted to his late father for residential purposes by the plaintiffs family. His father built a house and lived on the land on payment of tributes to the plaintiffs until his death some 30 years ago. Thereafter P.W. 3 continued to live on the premises and paid the same tributes to the plaintiffs as his late father. They asserted that the defendants’ ancestors who were granted parts of the land in dispute by the plaintiffs’ family duly paid their customary annual tributes all the time to the plaintiffs ancestors.

The plaintiffs sought to tender several agreements between them and some of their said customary tenants but these were rejected in evidence by the trial court for want of registration under the Land Instruments Registration Law and non-compliance with the provisions of the Illiterates Protection Law of Anambra State. They concluded by stating that despite repeated demands, the defendants had refused to pay their tributes as their fathers did and had infact denied their title to the land in dispute hence this action. They claimed as per their amended statement of claim.

The defendants, on the other hand, who are from the Azu village of Ogbunike claimed that the land in dispute as shown in their survey plan, Exhibit F, is their absolute property. They claimed that they inhabit the land in dispute in large numbers, cultivate crops and reap economic trees thereon. They exercise these acts of ownership and possession over the land from time immemorial without any disturbance from the plaintiffs family. They stated that they have an ancient footpath on the land. They denied being tenants of the plaintiffs family on the land in dispute or ever paying annual tributes to anybody in respect of their occupation of the land. They asserted that they live on the land in their own right as owners thereof. The 1st defendant agreed that one Obeagha who is related to his father begat P.W.3, Udenze Obeagha. He also admitted that the junior brother of P.W. 3 Daniel, resides where their father lived within the land in dispute. He could not however tell if P.W. 3 ever paid annual tributes to the plaintiffs family. He testified that if P.W. 3 paid tributes to the plaintiffs, the defendants did not authorise such payments. He claimed that the plaintiffs originally came from Isi-Uzo in Abatete to settle at Ogbunike. He agreed that P.W. 3 came from Umu-chiemesi sub-family to which he belonged. He admitted that P.W. 3, P.W. 6, P.W. 7 and P.W. 9 are all from their Azu village, Ogbunike.

At the conclusion of hearing, the learned trial Judge, Awogu, J., as he then was, after a careful review of all the evidence led before him preferred the testimony of the plaintiffs and their witnesses to those of the defendants. He described the evidence of the defence as unreliable and he proceeded to grant customary right of occupancy in respect of the land in dispute to the plaintiffs. He however dismissed the plaintiffs claims in damages for trespass, perpetual injunction and forfeiture.