Nwakobi Anachuna & Ors. Vs Eugene N. Nzekwu & Anor (1961)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, F.J

This appeal is from the judgment given in two consolidated suits (0/25/58 and 0/32/58) on the 12th May, 1960, by Betuel, J., at Onitsha, in the High Court of the Eastern Region. They were cross-actions between the Ogbo (Umuasele) family of Onitsha and the people of Obosi; the parties will be referred to respectively as the Onitsha and the Obosis, as in the Privy Council judgment of the 14th February, 1955 (Privy Council Appeal No. 39 of 1951, sub nom. Chief J. M. Kodilinye and another v. Philip Akunne Anatogu and another, re-ported in (1955) 1 W.L.R. 231). The appellants are the Obosis again. This time the dispute is about possession. It will be useful to quote the following passage from the judgment of the Privy Council:

The only issue having been as to ownership nothing could or should have been decided which would in any way affect the usufructuary rights, if any, of individuals or of families or tribes to the land in dispute or any portions thereof, or as to whether any such rights are or are not conditional upon payment of rent or tribute. All such matters can only be decided in proceedings in which such issues are properly raised.

The result was that the Onitshas were left with their judgment that they were owners of the land, but the words “and possession” were struck out of the in-junction, which now reads:–

An injunction to restrain the defendants and their people of Obosi from interfering with or disturbing the plaintiffs’ owner-ship of the said land.

The consolidated suits were brought to decide possession. But there had been some preliminary skirmishing.

In 1956 the Onitshas brought suit 0/31/1956 against one Isaac Madueg-bunam Ichu, an Obosi, claiming recovery of possession of a portion of their land in Ugborimili, an order for the demolition of his buildings, and an in-junction to restrain interference with their ownership and possession of the said portion of land. Judgment was given on the 24th August, 1957, for recovery of possession; demolition was refused; but the injunction was granted. Something went wrong with Ichu’s intended appeal, and it was struck out on the 18th May, 1959 (F.S.C. 54/59). In the judgment now under appeal, the learned trial Judge states:–

In my opinion Exhibit 15 (the Ichu case) is res judicata or comes within the extension of the doctrine, but in case I am mis-taken, I will also consider the other aspects of the case.

Learned counsel for the Obosis (the appellants) has argued that the learned Judge went too far. The Ichu case could not operate as estoppel by conduct, was his first argument.

The judgment goes on to consider other aspects, and ultimately states that:–

There remains the question whether the Obosi Community can successfully resist the remedies sought against them in suit No. 25 of 1958, by raising some sort of equitable title or defence. The second argument advanced on behalf of the Obosis is that it was a mistake to reject their defence of acquiescence and laches. Their learned Counsel stressed the point of (aches rather: it was, he said to the Court for the in-formation of learned Counsel on the other side, the laches of the Crown that he relied upon; if it was complete in his favour by 1949 (when the Crown gave up the land) he was safe, otherwise not. And in his reply he said that he stood or fell on the position that the Crown had by acquiescence waived the Community’s trespass and lost the right to evict the Obosis from their farms and buildings, and that right could not revive.

Now, the trial Judge did accept the Obosis’ submission that laches or ac-quiescence on the part of the Crown would bind the Onitshas; he was of opinion, in the light of a passage in A. G. for Trinidad and Tobago v. Bourne, 1895, A. C. 83, that equitable defences were not affected by section 31 of the Crown Lands Ordinance, cap. 45, which provides that:–

No action or other remedy by or on behalf of the Crown for the recovery of possession of Crown land shall be barred or affected by any statute, ordinance, or other law of limitation.

The learned Judge proceeded to review the facts. He said that no question of acquiescence arose before 1934; in that year Government forbade both the Onitshas and the Obosis to deal with the land; the Onitshas heeded the warning, the Obosis did not; and now I quote from his judgment:–