Okafor Adone V. Ozo Gabriel Ikebudu & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C.

This is an appeal from the decision of the Court of Appeal (Ejiwunmi, JCA (as he then was), Tobi and Adamu, JJ.C.A, dismissing the appeal of the appellants from a decision of the High Court of Anambra State whereby the appellants’ claim against the respondents for a declaration that they are “the rightful people” for the grant of customary right of occupancy to land coloured pink on a plan MEC1205/80 damages for trespass and injunction was dismissed.

In the High Court, the appellants relied on traditional evidence and acts of ownership for their claim. They averred that the land which was part of a larger piece of land belonging to the plaintiffs known as Mgbenu Awani Ire and more particularly delineated and coloured blue on the plaintiffs’ Plan No. MEC/205/80 attached to the statement of claim, was founded by their ancestor, Ire, and that by succession, it devolved on the community consisting of the 6 quarters representing his six children and thereby became communal property of the six quarters of Ire village. They averred, further, that the land known and called “Mgbenu Awani Ire Land” had been owned and cultivated by them from time immemorial and, that they performed other acts of ownership such as, burying their dead and building market stalls on it. They alleged that the respondents, sometime in April, 1980, destroyed a poultry building and com crops on the land. They then instituted the action which spawned this appeal. In their statement of claim as finally amended, they averred that the respondents (as plaintiffs) sued them over the same land and lost. They gave notice that: “The plaintiffs in the current case would plead the said suit, No. AA/23/71 and will rely on the said suit” and on a Plan No. MEC/98/72 used in that suit.

The original defendants who are 1st – 3rd respondents, and the joined defendants, who are the 4th to 6th respondents, in this appeal denied that the land in dispute, which is the area edged “pink” on a plan MEC/205/80 attached to the appellants’ statement of claim “is owned, or has ever been owned” by the plaintiff or that it was a part of a larger parcel of land belonging to the plaintiffs and called Mgbenu Awani Ire. They averred that the land fell within the land originally owned in common by the family of Umuriam Obunese which, following “successive sharing of progenitors land in accordance with custom now comprises lands allotted to descendants of Oguno and are specifically dwelling lands allotted to Lazarus Chinwuko, Edward Chinwuko and Ikechukwu Okeke Oguno”.

These persons mentioned were the 4th to 6th defendants joined by order of the High Court. They averred occupation of contiguous lands and land within the area in dispute in paragraphs 8, 9, 6, 13 and acts of ownership in paragraphs 16 and 17. The joint statement of the 4th – 6th respondents was on similar lines. The respondents averred that the area in dispute in suit No. AA/23/71 in which the original defendants herein were plaintiffs, was the area verged “green” on their plan MG/AN.423/81 and on the 4th – 6th respondents’ plan No. MG/AN.423A/85. It was the respondents’ case that the area then in dispute is different from that in dispute in the present proceedings.

At the trial, the appellants relied on the decision in the previous suit (“the 1971 suit”) as constituting issue estoppel. In the 1971 suit they were the defendants and the respondents’ family were the plaintiffs. In the 1971 suit, the present respondents family claimed against the present appellants “declaration of title to land known as Owelle Amadi and shown verged pink in plan No. OKE/D31/72”, possession of the land and damages for trespass. They relied on traditional evidence and acts of ownership in support of their claim. As shown by the judgment of the High Court Aseme, J. (as he then was) in the case the two main issues in the case were:

“(1) whether the plaintiffs are owners of the land in dispute verged pink on Plan Exhibit A and the defendants their customary tenants thereof.

“(2) whether the plaintiffs challenged the defendants when the building which was later leased to Multi Co-operative Society, they being erected by the defendants on the land in dispute.”

Aseme, J., observed that the land in dispute formed part of a larger piece of land which both sides claimed to be their own and that “pursuant to this, both sides have shown on their respective plans, various acts of possession or ownership within this greater piece of land apart from the land in dispute.”

But he cautioned that:

“apart from these alleged acts, any consideration regarding the area outside the land in dispute verged pink in Exhibit A would be going outside the scope of the claim and issues joined by the parties ….”

He found specific acts alleged by the respondents (then plaintiffs) not proved. Such were: the use of portion as burial ground, farming on the land “immediately outside the land in dispute”, and some buildings on the land. At the end, the learned Judge found that “the plaintiffs never exercised those acts in enjoyment of the area surrounding the land in dispute as they contend.” As for a Multi-Purpose Co-operative Society building, he found that the present appellants exercised acts of ownership over the building ‘nee clam nec precario’ before the outbreak of the Nigeria civil war.

As for evidence of tradition, Aseme, J., found “the testimony of the plaintiff on the issue of tradition concocted.” He therefore dismissed the claim to the land then in dispute by the present respondents. Aseme, J’s judgment was confirmed by the Court of Appeal.

In the present proceedings the defendants in the 1971 suit were plaintiffs. At the High Court they contended that the present proceedings and the 1971 suit were in respect of the same land. The area in dispute in the present proceedings is that area shown on the plan No. MEC/205/80, admitted in evidence as Exhibit A. The area in dispute in the 1971 case was shown on the respondents’ plan No. MG/AN.423A/85 tendered as Exhibit H and verged green thereon. The respondents’ surveyor (DW4) said in his evidence that he super-imposed Exhibit A on his own plan Exhibit H and that it was easy for him to mark out the area cause of action verged red in Exhibit and that it is pink in Exhibit A.