Uzor Idika & Ors. V. Ndukwe Erisi & Ors. (1988)
LawGlobal-Hub Lead Judgment Report
OBASEKI, J.S.C.
This appeal is against the order of retrial made by the Court of Appeal after hearing and allowing the appeal to it from the judgment of the High Court of Justice of Anambra State holden at Afikpo (Uche, J.) in suit HAF/2/78.
The claim before the High Court was for:
“(1) Declaration of title to all the piece or parcel of land known as and commonly called ‘Ogboi’ situate at Libolo Ekoli Edda in Afikpo Local Government Area within jurisdiction and more clearly shown in Plan to be produced at the hearing of the claim:
(2) N800.00 (Eight hundred Naira) damage for trespass committed by the defendants on the said land;
(3) Perpetual injunction restraining the defendants their agents or privies from entering or in any manner interfering with the land without the authority of the plaintiffs.”
The Plaintiffs sought and obtained the order of the court to sue in a representative capacity. Thereafter, the parties on the order of the court filed their pleadings and plans. At this stage, there were 10 Defendants. On the application of the Defendants, Efa Udo and Olugbu Nnachi, were joined as 11th and 12th Defendants representing themselves and members of Ibe Uma. Ibe Ekworo. Ihe Echawo. Ibe Enogu and Ibe Nwaeham matrilineal families of Eda. In other words. they constituted the second set of Defendants. The parties filed and exchanged pleadings and plans. The issues joined were settled by the court under Order 32 Rule 2 of the High Court Rules. It is necessary to reproduce these in full as set out in the record of proceedings page 39.
“Issues under Order 32 Rule 2 of the High Court Rules were settled by the court as follows:-
- The Plaintiffs are suing in a representative capacity is admitted. Plaintiffs to give formal evidence of this;
- Plan No. P.O./247/78 of the Plaintiffs and plan No. SE/MA.225/7S of the Defendants each showing the same land in dispute. “Ogboi” Land and its natural features and boundaries to be tendered in evidence;
- Since both plans admit that the Plaintiffs have land south of the land in dispute separated from the land in dispute by Inyere Ogboi stream and the Defendants have land north of the land in dispute separated from the land in dispute by a foot path from Ogwuma and Okponta to…………..is the boundary between the Ogboi land of the Defendants the footpath from Ogwuma and Okponta to Erie down to where that foot path meets Inyere Ogboi stream as the plaintiffs assert or is Inyere Ogboi stream the boundary between the Plaintiffs and the Defendants as the Defendants assert
- Is it Ogbo Uko or the Plaintiffs or Nna Kama Ukpai of the Defendants who founded the land in dispute and how has it descended on either side up to the present day
- What acts of ownership and possession have either the Plaintiffs and their predecessors or the Defendants and their predecessors exercised over the land in dispute
- When the Ekoli community on two occasions in 1973 and 1975 looked into the matter of dispute over Ogboi land between the Plaintiffs and the Defendants what was their decision on each occasion.
- Can the decision of Ekoli community council on each of those occasions be regarded as attempt to reach a negotiated settlement or a decision operating as estoppel per rem judicatam
- Since both parties have pleaded the decision of the chiefs and elders of Ekoli Edda in favour of their own side what was that decision
- Are the chiefs and elders of Ekoli Edda a native customary body by tradition empowered to adjudicate upon land matters
- If so, can’t their decision, if properly established, operate as res judicata
- What do the Plaintiffs claim
Five witnesses testified at the instance of the Plaintiffs and 4 witnesses testified for the Defendants. The learned trial judge, after hearing the evidence and the addresses of counsel adjourned for judgment. He later delivered a considered judgment dismissing the claim in its entirety with N400.00 costs to the Respondents. The learned trial judge observed inter alia that:
“The evidence of Chief Ama Oti Oji (p.w.2) as to inspection of F the land in dispute prejudiced the Defendants’ case. The court cannot accept the decision of the chiefs and elders of Ekoli as one which properly concluded the matter in favour of the Plaintiffs.
According to him during the inspection of the land, it was the ancient foot path shown on both plans as the northern boundary of the land in dispute himself and other elders inspected. There was no going round the boundaries and noting the natural features and acts of possession like farming activities by either party…………… It is interesting to note that the dispute then was land dispute and not merely boundary dispute. This sort of inspection beats my imagination…………The court is inclined to believe the evidence of D.W.1 (Ndem Ukpai) that there was no inspection of the land in dispute by the chiefs and elders of Ekoli.”
The learned trial Judge then lashed out at P.W.2 when he said:
“In the witness box, Chief Ama Oti Oji (P.W.2) impressed me as one of those chiefs in the community, who, when there is land dispute between two villages or families easily sell their position and lean heavily on one side. He told the court that they first inspected the land in dispute before hearing the parties.”
He then commented:
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