Patrick Ogbu & Ors V. Fidelis Ani & Ors (1994)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.S.C. 

The plaintiffs at the trial court are now the appellants before this court. They won their case at the trial Court but the Court of Appeal sitting at Enugu reversed this victory of theirs and thus the appeal to this Court. The plaintiffs are inhabitants of Akpugo in the former Nkanu District of Eastern Nigeria. they are now in Enugu State. The defendants who also inhabit the same district are from Oruku. The suit at the trial Court and up to now is in a representative capacity for each party. The plaintiffs filed a plan of land which is Exhibit A at trial court. Exhibit A is a very detailed and clear plan.

It has got three distinctive portions, to wit, the area verged pink which is to the immediate North of River Inyaba, and North of this is a very extensive portion verged yellow. There are the boundary neighbours of the map – the Akporga Nike land at the extreme west and to the far North of the plan. There is also the land of Owo people to the North East and to the East is the land of Amechi Oba. The area verged pink on the plan (Exhibit A) is the one in dispute between the parties. The plaintiffs in their statement of claim, particularly in paragraph 4 thereof, averred that about 140 (one hundred and forty) years before they sued the area verged pink was granted by the owners to them and have since been exercising maximum acts of ownership thereupon. It is pertinent the paragraph 4 of Statement of Claim be set out, viz:

“About 140 years ago the people of Akporga Nike granted to the people of Akpugo the parcel of land verged pink in the Plan No. P.0./E21/77 in perpetuity under Customary Law. And consequent upon the said grant the plaintiffs and their ancestors before them took possession of the said land and have been exercising maximum acts of ownership and possession over the said land by farming and living thereon, by reaping the economic trees on the land and by fishing in the lakes on the land. The plaintiffs also have some of their jujus on the land”.

According to paragraphs 5 and 6 of the Statement of Claim, the defendant had in 1971 in a suit No.E/161/7l brought all action against the plaintiffs claiming the same area as theirs absolutely and tendered a plan No. ENC/3/72 as Exhibit 7 (in this case tendered by present appellants at trial Court as Exhibit G). In that same suit the present appellants filed their own plan tendered therein as Exhibit 8 (Now Exhibit B). Because the present respondents as plaintiffs in that case never proceeded further with the case it was struck out for want of prosecution on 20th January, 1976.

The second day, i.e. 27th January, 1976 the present respondents, acting in concert broke into the land in dispute and committed various acts of vandalism. Members of appellants community of Akpugo were injured, and crops were destroyed. The plaintiffs/appellants call the disputed land “Agu Efi”, the respondents call.

“Oruku land” or “Otorojo”. The plaintiffs’ claim therefore is for damages for trespass and order for injunction against the defendants, their servants, agents from entering or trespassing or remaining on the disputed land or doing anything to vitiate the rights or possession of the land by the plaintiffs.

The respondents as defendants deny paragraph 4 of Statement of Claim and further averred that a Court order of 8th March, 1946 as a result of a case titled Idodo Native Administration v. Akpugo all Akpugo houses on Agu Efi should be destroyed. The said order is Exhibit D produced from National Archives, Enugu. The document, Exhibit D reads:

“In pursuance of case No. 6/46 Idodo Native Administration v. Akpugo whereby the said Native Administration ordered that all Akpugo houses on Agu Efi be destroyed by 18th day of January.

1946. We hereby issue all Order of Court for the Native Administration to destroy all houses standing on above land through noncompliance with the case No. 6/46”.

The defendants/respondents though alleging the above quoted document was a Court order, the proceedings on which the order resulted, and the judgment thereof were not pleaded nor produced in Court. Also this brief document cannot be said to be a matter involving the respondents, even though the appellants who are inhabiting Akpugo might possibly have been affected by it. In the absence of any certification and any link of respondents the trial court would not have rightly attached any weight to the document.

However, a most revealing part of respondents’ case in paragraphs 5 and 6 of Statement of Defence admitted striking out of their suit and that they entered the disputed land though denied any act of vandalism. The defendants/respondents averred that Akporga Nike people through whom the appellants claim their right to possession could not have owned the land as awbias of Iji Nike. “Awbia” is all, outcast or “Osu” who could not in Ibo Customary law own land or dispose of land and that the appellants could not have derived any title or possession through them at the time of the alleged grant to them.

Apart from Exhibit A which appellants as plaintiffs tendered, the respondents despite their pleading never tendered any plan. Rather the plans Exhibit Band (supra) were tendered by the appellants as plans in the previous suit struck out. The alleged Intelligence Reports of colonial District Officers, Mr. H.J.S. Clark and Mr. S.P.L. Beaumont pleaded in paragraph 12of Statement of Defence were not tendered. Similarly, the maps and plans pleaded in paragraph 20 of Statement of Defence never surfaced at the trial. Trial Judge therefore in a reasoned judgment found for the plaintiffs/appellants and granted all their prayers. In coming to his decision, trial Judge, Okadigbo J. found inter alia as follows:

“It is clear that in determining which of the two parties has the title to the land in dispute I have no difficulty in holding that the plaintiffs have the title. In this connection I would like to state that I accept and believe the evidence of P.W. 2, P.W. 3, P.W. 4 and P.W. 5 to the effect that the Akporga Nike people the owners of the radical title to the land in dispute some 140 years ago granted the land in dispute to the plaintiffs and that thereafter the plaintiffs went into exclusive possession. I may observe also that the failure on the part of the defendants to show how they came into possession of the land in dispute is fatal to their case”.

He further held;