Silas Okoye Okonkwo & Ors. V. Chief Agogbua Kpajie & Ors. (1992)

LawGlobal-Hub Lead Judgment Report

B. WALI, J.S.C. 

This is an appeal against the decision of the Court of Appeal Enugu in which it affirmed the judgment of the Onitsha High Court dated 29th July, 1981 in Suit No. 0/52/73. In the suit Silas Okoye Okonkwo and 2 others (for themselves and on behalf of the people of Umusiome Nkpor) claimed against Chief Agogbua Kpajie and 2 others (for themselves and on behalf of the people of Ikenga Ogidi) for the reliefs contained in the amended Writ of Summons, to wit –

“1. Order of court on the defendants for boundary between the plaintiffs and the defendants on Okofia land at Nkpor in the judicial division to be demarcated with concrete pillars.

2. Perpetual injunction, and
3. A declaration of title to Okofia land.”

Both the plaintiffs and the defendants filed and exchanged pleadings in which issues were joined. Both parties called witnesses, filed survey plans and tendered judgments in previous litigations between them in respect of the land in dispute. Learned counsel on both sides addressed the court at the conclusion of the evidence adduced. The learned trial judge (Awogu J. as he then was) meticulously considered the evidence and made the following findings –

“On the acts of possession, the plaintiffs claim in Exh. A to have won the land verged pink, which they contended that the defendants now occupy. They claimed to have won the land per the judgment in Suit 0/122/62, but the case appears to have conferred no such title on the plaintiffs. All that it decided on appeal, was that the judgment obtained by the present defendants against the five quarters of Nkpor should not apply to the present plaintiffs (i.e. Umusiome Nkpor). Beyond this, the other evidence of possession were shrines, the Olisaeloka well dug before this action commenced and the house of the 2nd plaintiff as well as others of the plaintiffs’ village.

The maternity of the wife of P.W.2 (Oraekwuotu) is outside the land in dispute. What is of interest however, is that the defendants do not claim the areas on which these scattered buildings of the plaintiffs, their shrines; Olisaeloka well and farms, are located. It is the area to the north of it that the defendants say is their boundary with the plaintiffs. In that area the presence of the plaintiffs is minimal. The defendants on the other hand, would appear to have been in this area many years before the present dispute. P. W.9 (Ejike Chidolue) claimed to have seen the buildings of the defendants in this area when he carried out a survey for the defendants in 1956 or thereabout. To this extent, therefore the acts of possession on (of) this area cancel each other out and the plaintiffs do not have the edge.

By superimposition of the plaintiffs’ plan (Exh.A) and the defendants’ plan (Exh. G), the resultant plan, Exh. C, shows quite clearly the area that I have in mind. The South of the GREEN verge in Exh. C is the area predominantly occupied by the plaintiffs and which the defendants would appear to concede to them, but the area to the north of that GREEN verge is what the defendants claim to be their boundary with the plaintiffs. lt is here that the presence of the defendants is overwhelming.

This boundary is alleged to have been fixed by a court order but the order was not exhibited. On the whole, having regard to the agreement of the parties that ‘mgbu” or “mpia” bush forms the boundary, the issue must revolve itself around where this boundary is located on the “mgbu” or “mpia” bush. The plaintiffs have shown its location on Exhibits A and C. The defendants showed it on Exhibits G and C and also claim that cement pillars (now pillars removed) were planted along the boundary. While I agreed with Mr. Egonu that the cement pillars were not inserted by the order of the court, the fact that some of them are still at the boundary proves, at least, that the defendants know the extent of their boundary in “mpia” bush. This perhaps explains why the defendants have even conceded some of the land in dispute as belonging to the plaintiffs. From the evidence before me, the plaintiffs have not made out a case for declaration of right of customary occupancy to “Okofia” land in dispute. They admit that “mgbu” forms their boundary with the defendants but the “mgbu” on Exhibits A and C does not extend to the Onitsha/Awka Road where they claim to commence their boundary with the defendants. Exhibits A and C appear also to concede the “mgbu” bush as belonging to both parties, but this is not supported by the evidence of the plaintiffs. This might have been enough to dispose of this relief but for the fact that on superimposition of the defendants’ plan (Exhibit G) on the plaintiffs’ plan (Exhibit A), the position of the “okofia” or “owelle” land in dispute becomes very clear.

This is shown in Exhibit C. By Exhibit C, the defendants have not made a claim to the land south of the green verge which extends from the Onitsha/Awka Road to a point marked by an “Ikpokilimodu” tree. This southern boundary divides roughly into two halves the “okofia” land claimed by the plaintiffs. In view of this concession, the effect in law is that the plaintiffs are entitled to the lease of the land claimed by them (see Okechukwu & ors. v. Okafor & ors. (1961) 2 SCNLR 369; (1961) All N.L.R. 685 at 688).

This portion commences with the green point on the Onitsha/Akwa Road in Exhibit C (which corresponds with the concrete pillar shown in Exhibit G at a point marked as “From Onitsha Ms.5”) down to the beginning of “mgbu” bush of the plaintiffs and southwards to the point terminating with the “ikpokilimodu” (or ikpekeloodu as it is spelt in Exhibit G) tree. To the north of this same green verge, the plaintiffs are not entitled to the declaration sought……………….What the plaintiffs seek is an order of court decreeing the “mgbu” bush as the boundary of the parties and that the same be marked out with concrete pillars. The plaintiffs, as I have observed earlier, also said that what they call “mgbu” bush is called “mpia” by the defendants. As I also observed earlier, the plaintiffs appear to make the “mgbu” bush communal to both parties but this is not supported by the evidence.

The defendants, on the other hand, have shown the portion of “mpia” bush belonging to the plaintiffs (they call it “mpia” bush) and also shown the portion belonging to them (which they call “mpia/Ogidi” bush). The dividing line of the “mpial Nkpor” bush and the “mpia/Ogidi” bush is the green verge to the south shown on Exhibit C which as I have observed earlier marks the area southwards which the plaintiffs are entitled to the declaration sought. This green verge to the south agrees with the pink to the south in Exhibit G which the defendants claim to be their boundary with the plaintiffs. If, as the plaintiffs concede, “mpia” is the name which the defendants gave to the bush in-between them. It means that the defendants have conceded a portion of this bush to the plaintiffs and the southern green verge on Exhibit C which agrees with the southern pink verge on Exhibit G marks the dividing line.

It is therefore possible to demarcate a boundary for the parties and I hereby demarcate it along the southern green verge on Exhibit C (which also corresponds with the southern pink verge on Exhibit G). The plaintiffs are entitled to the perpetual injunction sought, which must operate only in respect of the area to which they are granted the right of customary occupation. The injunction does not operate beyond the boundary which has been hereby decreed.”

The plaintiffs aggrieved by the decision of the trial court, appealed to the Court of Appeal, Enugu Division and in a well considered judgment of that court by Aseme, JCA, to which both Belgore and Olatawura JJCA (as they then were) subscribed, dismissed the appeal on all the issues raised and canvassed except for the one relating to the award of costs against the appellants in favour of the respondents.

The appellants still not satisfied, have now appealed to this Court, filing five grounds of appeal in support of the Notice of Appeal.