Okoludo Chibuzo & Ors Vs David Okoye & Ors (1973)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C 

In the claim before the Onitsha High Court in suit No.0/55/63, the plaintiffs claimed against the 1st defendant (Okoludo Chibuzo) alone the sum of 600pounds as damages for trespass committed on the “plaintiffs piece and parcel of land known as and called Iguene situate at Nkwelle Ogidi. “They also asked the court for a “perpetual injunction to restrain the defendant, his servants and/or agents from further trespass on the said land.”

After pleadings had been ordered and the plaintiffs had filed their statement of claim on 24th August, 1963, the second, third, fourth and fifth defendants successfully applied to the court on 5th November, 1963, for an order for them to be joined as defendants and also for all five of them to defend the action “for themselves and on behalf of the people of Ikenga Quarter of Ogidi Town in Onitsha Division.” Paragraphs 2 and 3 of the affidavit sworn to by one Dennis Okocha in support of the application read:-

“2. That at a meeting of important members and elders of the said Ikenga Quarter of Ogidi which I attended, we were shown a copy of the plaintiff’s plan in the above suit.

3. That the land in dispute shown in the aforesaid plan is the communal property of the Ikenga Quarter of Ogidi from time immemorial.”

Thereafter, the five defendants filed their joint statement of defence on 11th January, 1964. Paragraph 7 of the said statement of defence reads –

“7. The defendants from time immemorial have been in undisputed and exclusive ownership and possession of their Igwene land without let or hindrance from anyone whatever. As owners as aforesaid, the defendants and before them their ancestors have exercised maximum rights of ownership and possession over the land in dispute by establishing their village thereon, living thereon with their families, having their Oye Market thereon, reaping all manner of economic crops including palm trees, coconut trees, pear trees, mango trees etc. without let or hindrance from anyone. The defendants also cultivate the land with diverse crops including yams, cassava and coco-yams and serve their ‘Akpu Agadinwanyi’ juju on the land.”

After receiving the statement of defence, the plaintiffs, with the leave of the court, amended their writ of summons, statement of claim, and plan. The new writ of summons reads –

“1. Declaration of title to the piece or parcel of land known as and called “Igwene’ situate at Nkwelle Ogidi in Onitsha Division within the jurisdiction of this honourable court.

2. 600 pounds damages for trespass on the aforesaid plaintiffs’ piece or parcel of land.
3. Perpetual injunction to restrain the defendants by themselves, their servants, agents and/or otherwise from committing further acts of trespass on the aforesaid piece of land.”

Paragraphs 3, 4, 5, 6, 7, 8 and 9 of the amended statement of claim read –

“3. The plaintiffs’ village was and is the owner and occupier of a piece and parcel of land known as and called Iguene Land situate at Nkwelle Ogidi within the jurisdiction and clearly edged green on the plan No. JJ50/64 filed by the plaintiffs in this action.

4. The said Iguene land is one of the several pieces of land, namely Omalacha, Mbako, Uguoji, Wanaga, Uguwangu and Onunu Ogu, over which the plaintiffs had disputed with Azu Ogbunike represented by one Timothy Ejiofo in suits Nos. 1/1930 and 10/30.
5. On the 19th February, 1934, the Divisional Court of the Western Division which sat at Onitsha declared title over the several pieces of land mentioned in paragraph 4 including the Iguene land in favour of the plaintiffs and the judgment was upheld by the West African Court of Appeal on the 19th November, 1934. The judgments will be founded upon at the date of trial. In the suit one Nwannumu Agulefo, the second defendant’s father gave evidence that the several pieces of land belonged to the plaintiffs while one Mosie in his evidence said the lands belonged to Azu Ogbunike.
6. Thereafter the plaintiff have been in exclusive possession of the said various pieces of land including Iguene, the land now in dispute.
7. In 1963, the first defendant broke and entered the land in dispute, erected a house and planted some crops therein. The area of trespass is verged violet on the plan.
8. The plaintiffs sued the first defendant for this wrongful act of trespass and the other defendants sought the order of the court to be joined as co-defendants representing their village, Ikenga Ogidi and they were according joined. They also claimed title over the land in dispute.
9. The plaintiffs as owners in possession have exercised from time immemorial maximum acts of ownership over the land including farming on the land; taking fire wood and cutting trees from it, letting the land to tenants including people from the defendants’ village and various other acts of ownership without any let or hindrance from anyone including the defendants.”

Notwithstanding the facts deposed to in their affidavit when the 2nd to the 5th defendants applied to be joined as defendants, the amendment by the plaintiffs to their writ of summons, not to mention the averments in their statement of claim, the defendants did not deem it fit to counter-claim for title. Instead they averred in paragraph 3 of their amended statement of defence as follows :-

“3. The defendants vigorously deny paragraph 3 of the amended statement of claim and will put the plaintiffs to the strictest proof thereof. The land in dispute which is known as and called ‘Igwene’ land is the property of the defendants’ people of Ikenga Ogidi from time beyond human memory and is more particularly and accurately delineated on the defendants’ plan No. EC.191/63 filed with this amended statement of defence and therein verged blue. The portion of Igwene land now in dispute is verged pink on the defendants’ plan aforesaid.”

In answer to the averments in paragraphs 4 and 5 of the amended statement of claim, the defendants admitted that there was a land dispute between the plaintiffs’ people and the people of Azu Ogbunike in suits No. 1/1930 and No. 10/1930 but averred further that the plaintiffs had not stated the true position vis-a-vis the defendants in relation to the case and to the survey plan used in the case. They then averred that during the land dispute, the plaintiffs caused a plan to be made in 1925 in which they included parcels of land belonging to the defendants, and that the defendants protested and threatened to take immediate steps to protect their interests. They further averred that, as a result of this protest, both parties (that is, the plaintiffs’ people and the defendants’ people) entered into an agreement to the effect that the plaintiffs’ survey plan of 1925 and the boundary claimed therein did not interfere with the old traditional boundary between Ikwenga Ogidi; that the said survey plan did not affect the ownership of Ikenga land; and that if in future there was a land dispute between them it should be settled in the traditional way of juju swearing. They denied the averments in paragraphs 6 and 9 of the amended statement of claim and averred further that they have been owners in possession from time immemorial of the land shown on their plan. As for the complaint against the 1st defendant, they asserted that he built on the land in dispute as a member of the defendants’ village and as owner of the disputed land.

At the trial, the 1st P1/W (Gabriel Enweoneu) testified in support of the averments in their amended statement of claim. He tendered the judgment in Suits No. 1/1930 and 10/30, which started in 1925, as Exhibit “B”. He explained that the defendants knew of that case and that one of their relations named Mozie gave evidence for the people of Azu Ogbunike while another relation (Nwannumu Agulefo) gave evidence for the plaintiffs’ people. He also produced the copy of the plan (Ex. C) used in the case. He then testified as to the acts of ownership performed by them on the land as follows :-