Otuocha Land Case Judgement

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UMUERI LAND CASE JUDGEMENTS


LAND COURT CASES

OTUOCHA UMUERI / AGULERI LAND CASE

INTRODUCTION:


The great importance of land to the people occupying the equatorial rain
forests cannot be doubted. They are essentially farmers. Aside from its direct
economic importance, land also served for the payment of dowries,
reparation for murder and as a means of exchange.

Land was also, the principal cause of many wars in Igbo land. It is less a
question of whether boundaries exist than it is a question of the ability to
enforce their demarcation. This ability depends to a large extent on the
development of a warrior class, which is able to defend the land already in
its possession and to capture more land as in the case of Aguleri.

It is an undisputed fact that Africans are very hospitable, especially when it
comes to the issue of feeding and housing a stranger. The same charity
extends to the giving out of land. Heads of families easily give out large
portions of land to friends without proper documentation. So when the
generation dies, children of both parties to whom were handed no
documented agreement in relation to the transfer of the land, usually argue
over the ownership of the land and some instances, fight for ownership.

The Otuocha land case between Umueri and Aguleri started at the expiration
of the Royal Niger Company’s charter in 1900.

The question of “who owns the Otuocha land” cropped up. It centers on
the question of which community first settled in its current territory and
which community has the rightful claim to the area known as OTUOCHA.

In the midst of confused atmosphere, the case went to court in 1933.

The District Officer, Captain O’Connor in charge of the provincial court
declared Umueri the rightful owner of Otuocha, having established the fact
beyond any reasonable doubt that Otuocha land, which borders the Anambra
River and Ako Stream belongs to them.

Aguleri therefore appealed to Assize Court, where the Judge Justice Graham
J. Paul upheld the appeal……………

But at last, the judgment of all judgments was pronounced and the Supreme
Court of Nigeria disposed off the case on 1st June 1984. (See Supreme Court
Judgment 1984).
 

DETAILS


IN THE FEDERAL COURT OF APPEAL

(HOLDEN AT ENUGU)



 Suit No.
0/98/1975:

BETWEEN:

1. Eze A.E. Idigo III )

2. Anago Anekwensi )

3. Nnekwuo Melika, )

4. Oguo Agbasionwe )

5. James Chinwuba and )... Plaintiffs/Appellants

6. H.M. Onwuegbuke (for themselves)

 and on behalf of the people of Aguleri

and

1. George Okafor )

2. Rudoff Omonyi )

3. Ignatius Ekwunu and )

4. Iveacho Udevi (for themse1ves
)….Defendants/Respondents)

 and on behalf of people of Umuleri

PROPOSED ADDITIONAL GROUNDS OF APPEAL

4. In view of the dismissal of the Defendants’ 1950 case, claiming
ownership of OTU-OCHA land, the learned trial Judge erred in law in taking
into account the "acts of ownership" put forward by the Defendants in the
present case, and ought only to have considered the "acts of ownership" of
the Plaintiffs, since the Defendants were estopped per rem judicatam from
using their "ownership" as a defence.

5. The learned trial Judge erred in Law in contradicting his clear
statement of the legal position of the Defendants, which he stated as
foIlows:-

"They cannot be heard to say that the land in dispute belongs to them, this
issue having been decided against them in the 1950 case," in yet taking into
consideration the various acts of ownership put forward by the Defendants

instead of only considering the sufficiency or otherwise in Law of the
various acts of ownership put forward by the Plaintiffs.

6. The learned trial Judge misdirected himself in Law, and thereby came
to a wrong decision, in holding as foIlows:-

"It seems to me that in determining whether the Plaintiffs are the exclusive
owners of OTU-OCHA land, Defendants’ established acts of ownership
cannot be ignored. Each party claims to have permitted the other party to
settle on the land as its tenants.

I have earlier stated that I do not believe that it was the Defendants who
permitted Chief Idigo to settle on a portion of the OTU-OCHA land with
members of his family. Neither do I believe the Plaintiffs that the
Defendants settled on any portin of the land in dispute with their
permission.........Whatever the historical reason may be, it is my view that
the OTU-OCHA land between the Emu and Akor streams was a vacant
piece of land and that it was the UMULERI people who first infiltrated into
it in the late 19th Century".

 
(a) It was not open to the Defendants to use ownership of the land in
dispute as a defence to the Plaintiffs’ action, since, as far as they were
concerned, they had been found by the Courts not to be owners, and
the matter was res judicata.

(b) It was not open to the learned trial Judge to give opinions on
traditional history not given in evidence, or to base his judgment upon
facts not properly proved before him, as he has done in the instant
case.

7. The learned trial Judge misdirected himself in Law when he held as
follows:-

"Uzonwanne Nwakuche v. Matthew & Ors. (supra)

relied upon by the Plaintiffs would not apply to the facts of the case,"
because that

case is on all fours with the present case, and ought to have been followed
by the

learned trial Judge, and he erred by not doing so.

8. The learned trial Judge misdirected himself in Law wben he held as
follows:


"In Plaintiffs’ favour is the affidavit sworn to by Chief Okoye and,
Onowu of Umuleriin 1922 when the lease of 1924 to the Nigeria Company was in
comtemplation that the AGULERI were the rightful owners of a portion
of the land in dispute. In my view that in itself is not conclusive evidence
that Plaintiffs are the exclusive owners of the land in dispute," because -

(a) the question was not whether the statement made in that affidavit was
"conclusive" evidence that Plaintiffs are the exclusive owners of the
land in dispute, but whether it was some evidence that helped to show
that Plaintiffs are exclusive owners, and if so what weight could be
given to it;

(b) the learned trial Judge failed to give sufficient or any weight at all to
this solemn declaration freely made on oath by two leaders of the
Defendants’ people against their interest, or even to consider how it
affected the balance of protabilities between the two contending
cases., for if he had done so his decision would have been different,
and he would have found in favour of the Plaintiffs.

9. The learned trial Judge misdirected himself in Law when be held as
follows: "Having considered the whole evidence led in this case and the
submissions made, I have found myself in no better position to draw any
definite conclusion," because it was the duty of the learned trail Judge
(which he has not discharged) to show what inference he drew from the
specific act of ownership found in favour of the Plaintiffs, and what weight
to attach to each of them, and not merely to leave the issues undecided as he
has done, or to clothe the indecision in the general statement that "the
Plaintiffs have not proved to my satisfaction on balance of probability that
they are the exclusive owners of the land in dispute" without showing how
he balanced the probabilities.

10. The leamed trial Judge erred in Law in failing to consider fully the
case for the Plaintiffs on its own merit, and by failing to make his own
inferences from the facts proved before him instead of relying heavily on the
inferences drawn by other Judges, in previous Suits between the parties,
where circumstances were not the same as in the instant case, and he thereby
failed to do justice to the Plaintiffs’ case.

DATED the.........................day of.................1979.

 (Sgd.) R.A. Chinwuba

 Counsel for Plaintiffs/Appellants


 Onumba’s Chambers, Otu-ocha - AGULERI.

 

Having considered the whole evidence led in this case and the submission
made, I have found myself in no better position to draw any definite
conclusion. The plaintiffs have not proved to my satisfaction on balance of
probability that they are the exclusive owners of the land in dispute.
Plaintiffs’ claims therefore fail and are accordingly dismisscd. May I
however, sound a note of warning to the defendants. In dismissing the
plaintiffs’ case, I have not decided that Otuocha land belongs to the
defendants. It is my view that neither side can establish exclusive ownership
of the whole of Otuocha land. If on leaving this court premises, no doubt
jubilant, they should go home to assert that Otuocha land belongs to them,
defendants and their leaders would take full responsibility for any breaches
of peace that may occur should they so behave.
 

Defendants are entitled to the costs of this proceeding which I fix at
N500.00.

 

IN THE FEDERAL COURT OF APPEAL

HOLDEN AT ENUGU.


SUIT NO. 0/98/75

Between: --

5. 1. Eze A.E. Idigo III

2. Anago Anekwensi

3. Nnekwuo Melikam

4. Oguo Agbasionwe

5. James Chinwuba

6. H.M. Onwuegbuke

 (For themselves and on behalf

of the people of Aguleri)

'Plaintiffs/ Appellant.


and
 

1. George Okafor

2. Rudoff Omonyi

3. Ignatius Ekwonu

4. Ivoacho Udevi

(For themselve and on behalf

of the people of Umuleri)

Defendants/ Respondents

20. TAKE NOTICE that the plaintiffs being dissatisfied with the decision
of the High Court, Onitsha, contained in the judgment of the
Honourable Justice T.C Umezinwa, dated the 12th day of June, 1978,
do hereby appeal to the Federal Court of Appeal upon the grounds set
out in paragraph 3 and will at the hearing of the appeal seek the relief
set out in paragraph 4.

25 And the appellants further state that the names and addresses of the
persons directly affected by the appeal are those setout in paragraph 5.

2. Part of decision of the. lower Court complained of:

whole decision.

3. Grounds of Appeal:

(1) The decision is against the weight of the evidence.

(2) The learned trial Judge seriously misdirected himself in fact and in
law when he held as follows:

35 "Whatever the historical reason may be, it is my view that the
Otuocha land between the Emu and Akor streams was a vacant piece
of land and that it was the Umuleri people who first infiltrated into it
in the late 19th century.

Because: 

5. (a) there was no evidence of such f.acts, which could support the
learned Judge’s finding, and,

(b) even if there were, such facts were never pleaded, and should
never have been accepted or acted upon by the learned Trial
Judge, ahd he erred in law by so doing, because evidence of a
fact not pleaded goes to no issue and should be ignored.

(c) the learned trial Judge, by such a finding, had given the
Umuleri people the opportunity to have their assertion of
ownership to the land in the dispute considered in the instant
case, which they had not a right to do as they were estopped by
the previous judgments against them tendered in evidence, and
he was wrong in law to have done that, since, if it was believed
that the Umuleri people were the first to infiltrate into the land
in dispute, then, by right of first occupation, they would be the
owners of the land, and the learned trial Judge must have been
influenced in his view of the whole case by this finding of facts,
wrongly made.

3. The learned trial Judge erred in law in treating rather scantly the
evidence

30. of the affidavit sworn to by Chief Okoye and Onowu of Umuleri in
1922, and not giving it the weight due to it as a solemn admission by
the Umuleri people that the land in dispute belonged to
Aguleri,especially as it was made when there was no pending action,
or when one was in view, and thereby came to a wrong decision.

Further grounds will be filed on receipt of the

5. Record of proceedings.

4. Relief sought from the Federal Court of Appeal:

That the decision be set aside and judgment entered for the
Appellants. Persons directly affected by the appeal:

 

Name Address

(1) Eze A.E.1digo III - Aguleri
(2) Anago Anekwensi - Aguleri
(3) Nnekwuo Melikam - Aguleri
(4) Oguo Agbasionwe - Aguleri
(5) James Chinwuba - Aguleri
(6) H.M. Onwuegbuke - Aguleri
(7) George Okafor - Umuleri
(8) Rudoff Omonyi - Umuleri
(9) Ignatius Ekwonu - Umuleri
(10) lveacho Udevi - Umuleri


Dated this 11th day of August, 1978.

 

(Sgd.)

R.A. CHINWUBA, ESQ.

APPELLANTS’ SOLICITOR

whose address for service is:

ONUMBA’S CHAMBERS,

 


IN THE HIGH COURT OF ANAMBRA STATE OF NIGERIA

ON MONDAY, THE 12TH DAY OF JUNE, 1978.

 

 SUIT NO. 0/98/75

 

Eze A. E. Idigo & Ors. - Plaintiffs

George Okafor & Ors. - Defendants

 

JUDGMENT

 

In this action the plaintiffs for themselves and on behalf of the people of
Aguleri, have sued the defendants for themselves and on behalf of the people
of Umuleri, claiming a declaration of title to a piece or parcel of land known
as Otuocha and perpetual injunction to restrain the defendants, their agents,
servants and assigns from building houses on or trespassing into portions of
the Otuocha land. Pleadings were ordered, duly filed and delivered. Both
parties with the leave of court made a number of amendmenls on their
pleadings and the plans of the land in dispute they had originally filed. The
amendments were initiated by the plaintiffs and the defendants of course,
felt obliged to file their own amended statement of defence and plan. All the
parties are agreed that the land in dispute is called Otuocha. The land lies on
the left bank of Anambra River which forms.its north-western boundary. It is
bounded on the north-east by the Emu Stream, a tributary flowing into the
Anambra River from the south-east, and on the south-west by the Akor
River, another tributary of the Anambra, which joins it from the south-east at
a point further down stream. The soulh-easlern boundary consists of an
imaginary land joining the two tributaries. The plan, which the plaintiffs
finally adopted as the plan of the land in dispute is plan No. PO/E360/75
admitted in evidenee as Exh. E. The legend on the plan shows the Otuocha
land in dispute verged yellow. The defendants also finally adopted plan No.
TJ. AN100 admitted in evidence as Exh. P. The legend describes the land in
dispute in the following expression "area claimed by plaintiffs as covered by
court order vide Ruling of the High Court Onitsha dated 6th June, 1977 in
present suit O/98/75 verged violet". The identity of the Otuocha land is
definitely not dispute.

The plaintiffs from the state of their pleadings base their claim mainly on
acts of the user over the land in dispute. They also rely mainly on
proceedings in suit 0/48/50 in which the Umuleris as plaintiffs sued the


Aguleris as defendants claiming the land in dispute as theirs and lost.
Umuleris also lost the appeal to the Federal Supreme Court and their further
appeal to the Privy Council. In this connection, plaintiffs pleaded in their
statement of claim as follows:

 

7. The plaintiffs had always protected their rights, title and interest in the
land in dispute at all times. .

 

8. In pursuance of paragraph 7 above, the plaintiffs had protected their
rights, title and interest in the land in dispute when the defendants made
several attempts to claim ownership of the said land.

 

9. The said claim of the defendants against the plaintiffs’ rights, title and
interest have been successfully resisted by the plaintiffs in suits O/48/50,
W.A.C.A. 266/I955 and Privy Council No. 4 of 1958, on which plaintiffs
will rely in this action.

10. In suit 0/48/58 Idoko Nwabisi & Ors. V.R.A. Idigo & Ors. instituted
by the defendants against the plaintiffs, .the defendants claim ownership and
title to .the land in dispute and the said action proceeded from the Native
Court on appeal to the Privy Council and the defendants’ claim of ownership
and title to the land in dispute was finally dismissed.

11. In consequence of the facts pleaded in paragraphs 8 – 10 above, the
defendants cannot now be heard to say that they are the owners or have title
to, the land in dispute.

12. In consequence of paragraphs 8 – 11 above, the plaintiffs claim that
the defendants are estopped from asserting ownership of or title to the land
in dispute. The plaintiffs thereby rely on the Law of Estoppel.”

The proceeding in this case relied upon by the plaintiffs were admitted in
evidence as Exhs. A, B and C. Exh. A is the proceeding in the Onitsha High
Court, Exh. B is the judgment on appeal to the Supreme Court and Exh. C. is
the judgment of the

Privy Council. To sustain their plea of estoppel per rem, it is the plaintiffs’
case that the land now in dispute was the very piece of land previously


litigated in Exhs. A, B and C. Indeed they adopted the plan of the land in
dispute used by the Umuleris when they were the plaintiffs in the 1950
proceeding. Then it was admitted in evidence as Exh. P and in the present
proceeding, it was admitted in evidence as Exh. D. The area verged yellow
in Exh. E. which is how the plaintiffs’ plan of the land in dispute is a
superimposition of the land in dispute as show verged green in Exh. D. The
plaintiffs do not rely on traditional history to establish their case. I shall later
have a little more to say on this.

The defendants have not denied that their action against the plaintiffs
claiming that the land in dispute is theirs, was dismissed. They contend
however, that the subject matter of the present dispute is not exactly the
same as the subject matter of the 1950 case. Thus they pleaded in paragraph
8 of their amended statement of defence as follows:

“In answer to paragraphs 9 & 10 of the amended statement of claim,
the defendants admit they instituted the suit 0/48/50 against the
present plaintiffs for declaration of title of land and that the said suit
went on appeal to the Federal Supreme Court (WACA 266/1955) and
to the Privy Council (No. 4 of 1958) and that their claim was
dismissed but they vigorously deny that the incident of the land, the
subject matter of the said suit and in respect of which the claim was
dismissed, is the area shown yellow on the plaintiffs’ amended plan
filed in the present proceedings and will put the plaintiffs to strick
proof.”

It is also their case that notwithstanding the dismissal of their claim, various
acts of ownership over the land in dispute were found in their favour and
that they are entitled to rely on these findings. They of course, contend that
not withstanding that their claim was dismissed, they can still assert that the
land does not belong to the plaintiffs.

The plaintiffs and the defendants are two neighbouring villages or towns in
the Anambra Local Government Area. They have been in court since 1933
over Otuocha land and portions of land contiguous to it, which in one of the
proceedings, they called Aguakor land. On the 25th June, 1898, the Royal
Niger Company acquired from the Umuleri people land which Hubbard, F.J.
in the judgment Exh. B, described as a piece of land, which appears more or
less to coincide with the land shown on Exh. P. Exh. P is the Umuleri plan
of the land in dispute in the 1950 case, which was admitted in evidence in
this proceeding as Exh. D. By section 2 of the Niger Lands Transfer


Ordinance, which came into force on the 25th of February, 1916, this land
transferred by the Umuleri people to the Royal Niger Company was vested
in the Governor of Nigeria as from 1st January, 1900. By Ord. 38 of 1950
made under section 10 of the Ordinance, the Governor abandoned all right,
title and interest in the land, except for the small area edged yellow on Exh.
D. Section 14 of the Ordinance provided that "Such abandonment shall have
effect as if such vested trust lands or part thereof had never been included in
the instrument, agreement or document, as the case may be, by which the
same were originally transferred to the company. “The Aguleris themselves
after the Umuleris had transferred Otuocha land to the Royal Niger
Company made some important dispositions of some portions of the
Otuocha land to some commercial companies including U.A.C., John Holt
and the C.F.A.O. These dispositions were made even while the land was still
vested in the Crown before the Crown finally abandoned it in 1950.

 

In the Onitsha Provincial Court suit No. 2/1933, Okafor Echuche & 3 Ors.
for themselves and on behalf of the people of Umuleri as plaintiffs sued
Chief Idigo & Anr. for and on behalf of the people of Eziagulu quarter of
Aguleri claiming a declaration of title to all that piece or parcel of land
known as OTU-OCHA UMULERI commencing from the stream known as
Akor to an ant-hill known as Nkpunwofia situate in the Onitsha Division.
The case was heard by Captain Dermot O’Connor, a District Officer with the
Resident’s Judicial Power. Whatever doubts there may have been as to the
extent of the Otuocha land then in dispute in that action, Counsel for the
parties in that case subsequently agreed on appeal in the then Supreme Court
that the land then in dispute was the very Otuocha land which the Umuleris
had transferred to the Royal Niger Company. Mr. O’Connor had little to
choose between the Umuleri’s case and the Aguleri’s case. The traditional
evidence led by the parties did not impress him and the acts of user by one
cancelled the acts of user by the other. He however, on the basis that the
Umuleris had made the 1898 grant of the Otuocha land to the Royal Niger
Company, entered judgment in their favour, having regarded such act of user
as an important act of ownership. On appeal by the Aguleri people to the
Supreme Court, presided over by Graham Paul, J. the appeal was allowed on
the ground that the Umuleris having divested themselves of whatever title
they may have had on the Otuocha land when they transferred the land to the
Royal Niger Company, had no more interest on the land for which a
declaration for title could be made in their favour.

To the Umuleris, the saying “once beaten, twice shy, came readily to their
mind.” In the Onitsha High Court suit No. 0/1935 Ononyi and Igweze Odili
for and on behalf of the people of Umutcheze - Umuleri, sued Chief Idigo
and Okeke Egbuche for and on behalf of the people of Eziagulu quarter of
Aguleri claiming a declaration that the people of Umutcheze - Umuleri are
the owners of all that piece and parcel of land known as AGUAKOR situate
at Umuleri, Onitsha Province. In the writ of summons, the boundaries of
Aguakor land claimed were described. Unlike the 1933 case where no plan
was used, in the 1935 case Umuleri people filed a plan of the Aguakor land
which they claimed. The plan, which was Exh. A in the 1935 proceeding
was admitted as Exh. O in this proceeding. The Aguakor land in dispute was
shown vereged pink in that action. What the Umuleris did was to exercise
the Otuocha land, which they had transferred to the Royal Niger Company in
1898 and then claimed all that piece of land east of it extending to its
boundary with the land of Ikenga, Umuleri not in dispute. Before
Waddington, J. the issues canvassed in the 1933 case were again in the 1935
virtually repeated on the reasoning that if any party could establish that the
Otuocha land transterred to the Royal Niger Company in 1898 is theirs, their
case would be strengthened in their claim that the Aguakor land, which is
contiguous to it is also theirs. Waddington, J. found himself in the same
difficulty that Captain O’Connor found himself in the 1933 case, for from
the evidence led by the parties there was nothing to chose. In his judgment
he observed as follows:

“I find it impossible to hold that the plaintiffs have succeeded in
discharging that onus, and the declaration they seek must accordingly
be refused.

As to the case for the defendants, they also like the plaintiffs, ciaim
possession and occupation from time immemorial. Like the
plaintiffs, they say the creek-strip is theirs and that it is not divided
from the disputed area, whence I am asked to draw an inference of
ownership of the latter, - a process similar to that in the case for the
plaintiffs.

Much reliance is placed on the evidence of defendant Idigo, he has a
competent knowledge of English and is a man of considerable
personality. However, I came to the conclusion after seeing him in the
witness box, that he is too deeply concerned for the success of his side
to be accepted with anything but caution. Nor do I think that the
remainder of the evidence of the defendants establishes a case in any
way more convincing than that of the plaintiffs. Had the former


claimed relief, they would have been in no better position to have
obtained it on their present case, than are the
later………………………

These considerations can, in my opinion; lead to only one result and
that is, that upon this evidence it is impossible to draw any definite
conclusion. My judgment will therefore, be one of non-suit.”

The Umuleris appear not to have taken kindly to the fact that while their
hands were tied in respect of the Otuocha land, which they had transferred to
the Royal Niger Company and now vested in the Crown since 1900, the
Aguleris were making important dispositions of portions of the land to the
various European Commercial Companies and collecting rents from them.
Through their solicitors, they petitioned His Majesty’s Representatives in
Nigeria. The various correspondences that passed in this connection between
their solicitors and His Majesty’s Government in Nigeria have been
exhibited in this proceeding. When eventually the Crown divested itself of
whatever right it had over the Otuocha land, the Umuleris to assert their
ownership over the land, instituted the 1950 case Exhs. A, B and C and lost.
The Aguleri in the present action have turned plaintiffs wilh the Umuleris as
the defendants seeking for a declaration of title and injunction over the
Otuocha land. They have not based their claim on any evidence of traditional
history. This is understandable for in the 1933 and 1935 cases none of the
courts was impressed by the rag tag evidence of tradition canvassed by the
parties. Acting very wisely, they have relied on various acts of user and the
1950 proceedings in which the claim of the Umuleris over the Otuocha land
was dismissed.

The Aguleris altogether called fourteen witnesses. Their star witness is the
1st defendant who is a recognised King and natural Ruler of the Aguleri
people. He belongs to the Agulen Royal Family. His father whom he
succeeded on his death and his grand-father were all in their life time, the
Kings and Rulers of Aguleri people. It is his evidence that the Otuocha land
belongs to Aguleri people. He described the boundaries of the land and
stated that it is completely within the land of Aguleri people. As owners of
the land in dispute, Aguleri people live and farm on the land. The Palace of
the Igwe of Aguleri where he now lives, is on the land. In 1924, Aguleri
people leased a portion of the Otuocha land to the Royal Niger Company. At
the expiration of the lease it was renewed in 1933 for a term of 30 years. In
1926, the Aguleris leased a portion of the land in dispute to John Holt where
the latter built a uumber of houses and used them for commercial purposes.

Chief Idigo who gave his age as 63, stated that he was born on the land in
dispute and that there were many buildings on the land in dispute when he
was born. Many more houses have since been built and these include private
residential houses of Aguleri people and schools and churches. Apart from
the Aguleris, there are strangers who built on the land in dispute with the
permission of his people. Their possession and acts of ownership over the
land in dispute have not been disturbed by anybody. The Umuleris he stated,
do not own any portion of the land in dispute. They have brought this action
against the Umuleri because they are claiming that the.land in dispute
belongs to them. Other important disposition his people made on the land in
dispute is the grant in 1910 of an extensive area of the land to Umuoba
Anam for their settlement. In this their settlement where they live and have
their own schools, nobody has ever disturbed them. Under cross-
examination he state that his father granted a portion of the land in dispute in
1931 to C.F.A.O. as his personal property. It was his evidence that many
Aguleri people have their own portions of the land in dispnte as a result of
grants made to them by Aguleri as a Commnnity. He stated that before the
various grants to U.A.C., John Holt and C.F.A.O. were made, the District
Officer in charge of the area conducted enquiries to make sure that the
portions of land being leased out to the companies by his father belong to
Aguleri people. According to him in the course of one of these enquiries,
two Umuleri chiefs joined in deposing to an affidavit that these portions of
Otuocha land belong to Aguleri people. This affidavit, which could be seen
at pages 219 - 220 of Exh. A was admitted in evidence as Exh. F. According
to him, his father who was previously living at the Christian Village of
Mbito moved down with his family and his complete entourage to live on
the land in dispute in 1915. Because his father wanted Otuocha to be as
important as Onitsha, he encouraged strangers from various communities to
come and live on the land in dispute free. These included the Hausas,
Yorubas, Nupes and Kakanda communities. He denied the suggestion that
his father was the first Aguleri man to live on the land in dispute. It is his
evidence that his great grand-father received the Royal Niger Company on
the land in dispute in 1884 during their exploration of the area. According to
him, he received them between the Adapa juju and Ofianwagbogho.
Although his grand-father lived at Eziagulu village, he farmed on the land in
dispute and had farming huts on the land.

Chief Idigo denied the suggestion that it was the Umuleri people who gave
his father the portion of land on which he lived on the land in dispute. He
stated that the Odakpa juju which is on the land in dispute belongs to
Aguleri people and gave the name of juju priest as one Udealor of Aguleri.
This juju priest he stated is now dead and has been suceeded by his son as
the juju priest. He admitted that the C.M.S. church on the land in dispute is
surrounded by some buildings belonging to Umuleri people. He conceded
that while there are more Aguleri people living north of the tarred road,
which passes through the land in dispute, many Umuleri people have their
houses south of the road. He denied the suggestion that it was the Umuleri
people who settled Umuoba people on the land in dispute. According to him,
the Rest House on the land in dispute, which is now being used as the
Divisional Office was built by his father in 1922 on Aguleri land. He denied
the suggestion that he had earlier testified in court before Nnaemekagu, J.,
that an Umuleri man was paid compensation in respect of the land where the
Rest House was built. He stated that since the 1950 case, the Aguleris have
authorised non-Aguleri people to build on the land in dispute. Whether the
Umuleris have done the same, he does not know. Under re-examination,
Chief Idigo stated that the various portions of land, which his father leased
to the Royal Niger Company, John Holt and C.F.A.O. were given to his
father as a customary tenant by Aguleri people. He stated that Okafor
Egbuche and Omonyi all from Umuleri were formerly the caretakers of the
Aguleri people on the land in dispute. Umuleri people according to him are
their tenants on the land in dispute but after the 1950 case, they entered the
land in dispute without their permission and built many houses on it. It was
on account of that they have taken this action against them.

A number of Aguleri people who exercise acts of ownership the Otuocha
land either by living or farming or fishing on the land gave evidence of those
acts of ownership. James Chinwuba who gave his age as 67, stated that he
has many houses on the land in dispute. One of them is a storey building and
the rest are bungalows. For 14 years, the Police at Otuocha used the storey
building and one of the bungalows as their offices. Before he built on the
land over 30 years ago, his father had been farming on it. It was with the
permission of the Aguleri people that he built his houses on the land in
dispute. According to him, under the terms of the grant by the Aguleri
people, the land would revert back to them if he abandoned it. His
immediate neighbours on the land he stated, are mainly Aguleri people.
Aguleri people he stated built the St. Peter’s (C.M.S.) Church on the land.
Nonyelu Okeke, in his evidence stated that he farms the Ofianwagbogho
portion of the Otuocha land. His father during his lifetime had farmed on the
said Ofianwagbogho land and his grand-father as well farmed on the same
land. The Odakpa juju according to him, which is an ancient juju has been
on the land.before he was born. It is his people the Aguleri who offer
sacrifices to the Odakpa juju. According to him one cannot go on another
person’s land to install a juju. Igwekaofu Ndife stated that he farms along
the shores of the Akor stream and fishes on the stream as well. The 6th
plaintiff Hyacinth Onwuebuka, stated that he has a house on the land in
dispute near the Manason’s Guest House and the Aguleri clinic.

A Religious sect known as the Cherubim and Seraphin built their church on
the Otuocha land with the permission of Aguleri people. Theresa Okonkwo,
a widow, very bitter against the 1st defendant when she gave evidence,
stated that she lives at the Akor section of Otuocha land and had lived on the
land with her husband until he died 30 years ago. According to her, her
husband had already built a house on the Otuocha land before he married
her. 1st detendant she stated lives within the same compound with her and
claimed that it was her husband who gave him the piece of land on which he
built his house. She abandoned her house during the civil war but on
returning to it at the end of the civil war, she found that the 1st defendant
had occupied her house. An action, which her son Michael took against the
1st defendant for occupying their house was, struck out for want of
prosecution.

A number of stranger elements who live and/or carry on their business on
the Otuocha land as a result of grants made to them by Aguleri people also
gave evidence. Geoffrey Okeke from Enugu Agidi in Njikoka Local
Government Area on his employment as a clerk under the U.A.C. started
1iving in Otuocha land in 1958. He stated that in 1964, the U.A.C. assigned
their premises and their buildings on the land in dispute to him. Under the
assignment, he has been paying the land rent to Chief Idigo and his people of
Aguleri. The rent, which originally was N90.00 per annum was revised in
1973 and he now pays N200.00 annually. Ogugua Udedibia who gave his
age as over 80 years and certainly looked so gave evidence as to how the
people of Umuoba Anam of which he is one, came to settle at Otuocha.
According to him this was about 60 years ago. Before then his people were
living at Anam, which is across the Anambra River. When their elders first
crossed the Anambra River to Otuocha, they met Umuleri people at the ferry
point. No doubt under the belief that the people they met were owners of the
land they offered to buy some portion of the Otuocha land from Umuleri
people. The offer was accepted and it was agreed that Umuoba Anam should
give to Umuleri people 5 cows, 800 yams and 800 fishes and they did so.
Umuoba Anam then took possession of the portion of Otuocha land.

According to him, Umuleri people swore to a juju that they would not take
back the land from Umuoba people while Umuoba people also swore to a
juju that they would not in future demand back from the Umuleris the 5
cows, yams and fishes that they gave to them. When his people, the Umuoba
Anam later came back and cleared the land given to them by Umuleri
people, Aguleri people came and set fire on the bushes, which his people had
cleared. They reported the incident to Umuleri people but Umuleri people
merely asked them to do whatever they liked. His people then went to the
Aguleri people to negotiate with them over the land. After giving Aguleri
people 7 cows, 800 yams and 800 fishes, they allowed them to settle on the
Otuocha land. In addition to the gifts, his people went to the head of the
Aguleris and conferred on him the Ozor Title. Since this arrangement, the
Umuobas have been living on the Otuocha land without any molestation
from anybody. In answer to a question from the court, the witness stated that
his people do not pay any annual tributes or rents to the Aguleri people or to
the Umuleri people.

Nicholas Ugezu, in his evidence stated that he now uses as his business
premises the premises formerly used by the C.F.A.O. and he pays rent to
Chief Idigo for the use of the premises. Michael Anikpee who claims to be a
rice industrialist, now uses the premises formerly occupied by the John Holt
for his rice industry. According to him, he obtained a lease of the premises
from the Aguleri community. Since he took a lease of the premises nobody
has ever disturbed him on the land. Francis Madubonu, a watchnight at the
Otuocha ferry point, stated that it was the Aguleri people who gave him a
portion of land where he built his house 40 years ago on Otuocha land. It is
his evidence that many people including the Aguleri, Umuleri and Anam
people farm on the Otuocha land. According to him it was after the 1950
case that Umuleri people forced themselves on the Otuocha land and started
farming on it. Oli John, an ljaw man, in his evidence stated that his father
lived on Otuocha land and it was there that he was born. Apart from the
Ijaws, the Hausas and the Yoruba communities live in Otuocha land. It is his
evidence that it was the people of Aguleri who gave the Ijaws the land on
which they live at Otuocha and that since his people settled on the land
nobody has ever disturbed them. Ali Adama from Bida in Niger State, stated
that he has lived on Otuocha land for about 60 years and that he came to live
there with his father when he was very small. Aguleri people he stated gave
him the land on which he built his house. His occupation of the land where
he built his house has never been disturbed by anybody. He stated under
cross-examination that his father did not come on the land in dispute with
any white man as his servant. Rather they came to settle on the land to fish
and trade.

Seven witnesses gave evidence for the defendants. George Okafor, 1st
defendant, who gave his age as 73, in his evideoce stated that his father
when he was alive was living and farming on Otuocha land and that it was
on Otuocha land that he was born. He then gave evidence about the grant of
the Otuocha land made by Umuleri people to the Royal Niger Company in
1898. The land his people granted to the Royal Niger Company he stated is
bounded by the Akor stream to Nkpunwofia for a distance of 2,500 yds.
Then from the Anambra River towards the inland for a distance of 1,000
yds. After the grant of the land to the Royal Niger Company, the Umuleri
had cause to retain the services of lawyers Soetan and Onyeama to write
petitions to the government on their behalf asking the government to leave
the Otuocha land for them. The series of correspondence were admitted in
evidence as Exh. Q. They could be seen at pages 155 – 162 of Exh. A. He
scorned at the evidence of P. W. 14 that it was her husband who gave him
the land on which he built his houses on Otuocha land. Rather he stated that
it was his own father who gave the husband of P.W. 14 the portion of land
on which he built his houses at Otuocha. During the AguIeri and Umuleri
riot of 1964, the witness stated that Umuleri people living in the midst of the
concentration of the Aguleri settlement of Otuocha land, ran away for safety.
Aguleri people living in the midst of the concentration of Umuleri settlement
on Otuocha land did the same thing. P.W. 14 he stated, was living in the
midst of Umuleri people and so ran away during the riot. When they
returned to their homes at the end of the civil war, they found that most of
their houses were damaged as a result of the war. P.W. 14 then came back to
repair her house but they told her that the Aguleris has driven away all
Umuleris living in their midst and for that reason, the Umuleris no longer
wanted her to live in their midst. She then went away. George Okafor
admitted that he was sued at the Onitsha High Court by the son of P.W. 14
when he cleared the ruins of their house, which they had vacated and that the
action was struck out in 1974. He then re-emphasised this point, which is not
in dispute that the main concentration of Aguleri settlement on the land in
dispute is north of the tarred road leading from Oye Agu Abagana to
Otuocha Waterside while the Umuleris main concentration is south of the
tarred road. According to him, plaintiffs’ story that Okafor Egbuche and
Omonyi, all from Umuleri were caretakers of the Aguleri people on the
Otuocha land is an abomination and cannot be true. He stated that late Chief
R.A. Idigo, the father of the 1st plaintiff was the first Aguleri man to live on
Otuocha land in 1915. Late Chief Idigo he stated, married the mother of the
1st plaintiff from his own village in Umuleri. Before moving down to live in
Otuocha in 1915, Chief Idigo was living at the Christian village in Aguleri
also called Mbito. Because of some misunderstanding he had with the early
Roman Catholic Missionaries in Aguleri, Chief Idigo decided to move away
from the Christian village to live somewhere else. He then approached
Umuleri people who allowed him to live on a portion of land called Amaeze
in Otuocha land. It is his evidence that before them, no Aguleri man has ever
entered the Otuocha land to build and live on it. He denied the evidence of
Chief ldigo that his grand-father lived on Otuocha land or receive the Royal
Niger Company on the land in dispute. Umuleri people he stated have over
two thousand houses in Otuocha land. He gave the ages of the Umuleri
houses on the land as ranging from 40 years to 50 to 100 years. According to
him, one thatch house built by his father is still standing on the land. The
two C.M.S. Churches and schools built within the Umuleri settlement in
Otuocha according to the witness, were built on portions of Otuocha land
given to the C.M.S. by the Umuleri people. The Umuleris he stated, have a
Town Hall on the land now being used as a Magistrate Court. He denied the
evidence of P.W. 12 that he fishes on Akor stream and stated that it is the
Umuleri people that fish on Akor stream while Aguleri people fish on a
stream in Aguleri Otu. The witness claims that the Odakpa juju, which is
within the land in dispute belongs to Umuleri. He denied the evidence of
P.W. 8 that he farms at Ofianwagbogho. The old Rest House, which is now
being used as the Divisional Office was built on Aguakor land belonging to
Umuleri people. It is his evidence that it was the Umuleri people who gave
the land on which the Rest House was built. Compensation he stated, was
paid to one Apke Okafor, an Umuleri man for his economic trees and crops
that were up-rooted from the land when the Rest House was being built. The
witness further claimed that the Kingdom Hall of the Jehova Witness was
built on the land in dispute with the permission of Umuleri people. He stated
that the 1904 agreement between Aguleri people and Catholic Mission was
not in respect of any portion of Otuocha land. According to him, the portion
Otuocha land on which the Chinwuba Brothers of Aguleri built their houses
was given to them by Umuleri people in 1925.

Under cross-examination, the witness admitted that he knew all about the
1933, 1935 and 1950 cases between Umuleri and Aguleri and that he was in
court throughout the whole proceedings. He denied the suggestion that it
was one James Okonkwo of Aguleri that gave him land near the Akor stream
where he now lives. He claimed that the settlement of the Umuoba Anam is
on Umuleri land. Suggestions under cross-examination that the land in
dispute is virtually surrounded by the land of Aguleri people were denied by
the witness. Having admitted that he was present throughout the proceedings
in the previous cases, evidence given by Umuleri people including his father
which in his own evidence in court now contradicted were put to the witness
and he denied hearing his people give such evidence. He denied the
suggestion that Aguleri people gave any land to the Royal Niger Company
in 1891. He did admit however, that Aguleri people gave land to the Royal
Niger Company at a place called Gloria Ibo but certainly not on Otuocha
land. He denied that suggestion that by the year 1920, Aguleri people had
built houses all over Otuocha land. Indeed, it is his evidence that it was after
the 1935 and 1950 cases that Aguleri people came to build many houses on
Otuocha land. He admitted that Chief Idigo gave a portion of Otuocha land
to John Holt in 1926, and U.A.C. in 1924. He denied that Chief Okoye of
Umuleri swore to an affidavit that the land, which Aguleri people gave to
U.A.C. belongs to Aguleri people.

According to him it was in respect of the land given by Aguleri people to the
C.F.A.O. that Chief Okoye swore to an affidavit. He stated that it was in
their dealings with the C.F.A.O., that his people knew that the Aguleri
people were dealing with another company, other than the Royal Niger
Company and so his people protested in 1931. In any event, he stated that
Chief Okoye swore in respect of a small portion of land situate by the
Anambra Riverside in Otuocha land. It is his evidence that if Chief Okoye
deposed that the land given by Aguleri people to the Niger Company
belongs to Aguleri people, he would not be speaking the truth. Aguleri
people he stated, have never claimed to his hearing that they gave any
portion of Otuocha land to the Catholic Mission in 1894 nor has he heard
them claim giving lands to the Mission in Otuocha land in 1904. He stated
that apart from the grants that Umuleri people made to Royal Niger
Company Chief Idigo, Umuoba Anam and the C.M.S., the Umuleris gave
portions of Otuocha land to many other people. He claimed that it was the
Umuleri people and not the Aguleri people who settled Umuoba Anam on
Otuocha land. He went further to deny that it was the Aguleri people who
gave portions of Otuocha land to the stranger communities consisting of the
Yorubas, Hausas, Ijaws and Nupes. His own version is that these various
communities came as labourers of the foreign companies that established
business on Otuocha land and that it was the companies that gave them
where they settled on the land.

Three Umuleri people who no doubt live on Otuocha land gave evidence.
Emmanuel Ogbala, in his evidence stated that he and his brother Daniel
Ogbala live at Udemba Umuleri in Otuocha. They have two houses on the
land, one of which was completed in 1971 while the other one is still under
construction. He claims that the land on which they built their house belongs
to their father. Their father he stated lived on the land and on his death, they
inherited the land. They were not disturbed by anybody when they were
building their houses on the land. Umuleri people according to him, gave the
Christ Disciples Church the land on which they built their church. He then
enumerated a number of Umuleri people who have their houses on the land
in dispute. Ebenezer Isoigu, a member of Jehova’s Witness stated that they
erected their church on the land in dispute in 1972 and it was the Umuleri
people who in 1971 gave them the land on which they built their church.
Vincent Nwasi who with the exception of Theophilos John, a Licensed
Surveyor proved to be the most intelligent witness produced by the
Umuleris, in his evidence stated that he lives on Otuocha land and that he
built his houses on the land in 1962. He had been farming on the portion of
land before he built his houses. The greater portion of his evidence consisted
mainly in an effort to counteract that case of the Aguleri people that the land
in dispute is virtually surrounded by the land of Aguleri people. It has been
the case of the Aguleris that along the Oye Agu tarred road to the Anambra
Waterside, the last village one would pass before getting to the Otuocha land
is in Aguleri. And so this witness in his evidence endavoured to establish
that other roads apart from the tarred road lead to the Otuocha land from
their own direction. In this respect, he gave evidence about a diversion south
of the tarred road of a road boldly described on an imposing signboard as
"original road leading to Otuocha Umuleri". In the course of my inspection
of the land in dispute, I was taken through this road.

Two tenants of the Umuleri people on Otuocha land gave evidence for them.
Theresa Onyeachonam, the widow of the late Dr. Onyeachonam who in her
younger days had worked as a nurse and midwife at the Aguleri maternity in
Otucha land from 1949 to 1953, stated that she now has her own maternity
since May, 1971 at Otuocha. In her quest for a site for her maternity, she met
the 1st defendant who took her to Nelson Okoye, the Chief of Umuleri. She
was taken round and shown two buildings and she finally chose the building
of one Felix Nwora, an Umuleri man. Nobody has ever disturbed her since
she started running her maternity in 1971.


Joseph Dibiaezue, a native doctor from Nsugbe town gave his age as 73. He
came to live in Otuocha in 1943. According to him in 1943, he bought a
piece of land at Otuocha from one Nwoyi Ibeagu of Umuleri and built his
house on the land in 1948 and started living in the house in 1952. This
witness although a native doctor, has a good educational background. He
attended school and read up to standard six. He had been employed as a
teacher under the Mission before he became a general time-keeper in the
Ministry of Works, Benin City. He listed his neighbours, all of them from
Umuleri. He stated that there are many people living in Otuocha and that
they live in groups. These groups are the Umuleris, the Aguleris, the
Umuoba Anam and the stranger communities consisting of the Yorubas,
Hausas, Ijaws and Nupes. Nobody he stated disturbed him when he was
building his house on the land in dispute.

Mr. Onyiuke for the defendants, in his closing address first dealt with the
plea of res judicata raised by the plaintiffs in their statement of claim. It was
his contention that the land now in dispute is more extensive in area than the
land in dispute in the 1950 case. The land in dispute in the 1950 case as per
the plan Exh. D, is the area verged pink and not the area verged green. The
area verged pink in Exh. D he rightly submitted corresponds with the area
verged pink in the plaintiffs’ plan Exh. E. Any plea of Res Judicata
therefore, he submitted would be only in respect of the area verged pink and
not in respect of the whole area verged yellow in Exh. E. It was his
submission that the area beyond the pink verge in Exh. E was not part of the
subject matter of the 1950 case and belongs to Umuleri people. He submitted
that in respect of the area of the land in dispute, the Umuleris people as far
back as 1935 have exercised numerous acts of ownership over the land and
he referred to the evidence of D.W.1. Theophilos John, a Licensed Surveryor
that when he made the plan Exh. O for the Umuleris in 1935, there were
over one hundred houses on the land belonging to Umuleri people. Umuleri
people’s various acts of ownership he submitted, were not in the least
disturbed by the Aguleri people when they were being exercised. It was his
submission that from the evidence led by the plaintiffs, they have not led
sufficient evidence, which would entitle the court to hold that they are the
exclusive owners of the land in dispute. He conceded that as matter of law,
Umuleris’ case was rightly dismissed in Exhs. A, B and C, and he referred
the court to the reasons given by the court in dismissing their claim. He then
submitted that for the plaintiffs to succeed in this action for title, they have
to prove acts of ownership numerous and positive enough extending over a
long period of time to warrant the inference that they are the exclusive
owners of the land.


This he stated was the test applied by the Privy Council against the Umuleris
in Exh. C. He supported this submission by citing the case Foli v. Akesse 2
W.A.C.A. 46 at p. 50. UmuIeris’ Case in Exhs. A, B and C, was dismissed
because their acts of ownership over the land in dispute were not numerous
enough to justify the inference that the land is theirs. He then contended that
notwithstanding the dismissal of their action, acts of ownership, which were
found in their favour by the court were not wiped out. It was his contention
that all the acts of ownership, which were found in their favour by the court
were not wiped out. It was his contention that all the acts of ownership relied
upon by the plaintiffs in this case had been canvassed in the 1950 case and
the Privy Council came to the conclusion that the evidence of the acts of
ownership was inconclusive on both sides. On the probative value to be
attached to Exh. F, the affidavit of Chief Okoye of Umuleri, learned Counsel
submitted that it was only in respect of a small portion of Otuocha land.
Although some weight may have to be attached to Exh. F. it was his
submission that Exh. F. is not conclusive proof of the plaintiffs ownership of
the whole land in dispute. Referring again to the plea of Res Judicata raised
by the plaintiffs, Counsel submitted that the Umuleris are only estopped
from claiming that the whole area of the 1950 case belongs to them. He
submitted that there are two types of estoppel per rem. One is estoppel in
respect of a cause action and the other is estoppel in respect of the issues
raised in an action. He referred the court to spencer Bower and turner on Res
Judicata 2nd Ed. pp. 149-183 and in particular to p. 152 and he submitted
that issues estoppel binds both parties. He supported this submission by
citing the case Samuel F. Alalade v. Festus Gbadebe & Anr. S.C. 399/75
delivered on 9/3/78 (unreported). The dismissal of the defendants’ case,
learned Counsel argued, does not estop them from disputing plaintiffs’ claim
of the land in dispute nor does it wipe out acts of possession and ownership
in respect of portions of the land in dispute found in their favour in the
previous proceedings. He cited the case Nwakuche v. M. Akueze & Ors.
(1962) 6 E.N.L.R. 181 but conceded that the decision in this case is against
his submission. He however, argued that the plaintiffs in this case have to
adduce substantial credible evidence to prove their case. That a plaintiff’s
claim for title was dismissed confers no title on a defendant when he did not
counter claim for one. When he eventually sues for title the burden is on him
to prove that he is the exclusive owner. He cited in support Njoku Ukaegbu
& Ors. v. Agu Nweke & Ors. S.C. 399/64 delivered on 16/10/64

(unreported). Most of the acts of ownership relied upon by the plantiffs in
this case were done after the defendants had granted the area verged pink to
the Royal Niger Company in 1898. Defendants he submitted were therefore,
powerless to act in establishing their claim against the plaintiffs' acts of
ownership on the land. Learned Couunsel submitted that the mere fact that
the defendants lost in the 1950 case does not make them tenants in respect of
the portions of the land in disptute in which they are in effective occupation.
The court was urged to reject plaintiffs' contention that Okafor Egbuche and
Omonyi of Umuleri were their caretakers of Otucha land for it is unlikely
that they should have turned round in 1933 to take out an action against
Aguleri people for title over very land they were supposed to he caretakers.
On the questions of the ownership of the odakpa juju, leamed Counsel drew
the attention of the court to the fact that in the 1933 case, the plaintiffs never
claimed ownership of the juju and that it was only in the 1950 case, the they
claimed the ownership of the juju for the first time. Both parties he
submitted, live on the land in dispute, each occupying mainly a section of
the land in dispute. In view of these acts of ownership by the parties over
the land in dispute, Counsel submitted that the plaintiffs have failed to
establish that they are in effective occupation of the whole land in dispute to
entitle them to judgement. The fact that the Umuleris’ claim for title was
dismissed would not affect their right of possession of the land in dispute.
This submission was supported by the case Okiji v. Adelobi 5 F.S.C. 44 at p.
49.

Chief Fanikayode in his reply, submitted that plaintiffs’ case is based -

(1) on estoppel per rem. Once judgment is given between the same parties
or their privies in respect of the same subject matter, the decision
made by the court notwithstanding whatever findings the court may
have made on any issue, binds the parties. The 1950 case Exhs. A, B
and C he submitted, binds the defendants. The plaintiffs he contended
are not relying on issue estoppel in this case. Once a plaintiff’s action
has been dismissed, he cannot come to court and use his ownership as
a defence, his claim for ownership having been earlier dismissed.

He supported this submission by the case Nwakuche v. Akwueze (supra). It
was his submission that since the defendants lost in the 1950 case and
plaintiffs now sue for title in respect of the same subject matter, plaintiffs in
view of the 1950 case are in a better position than as the defendants were
when they sued as plaintiffs in 1950. He referred to the judgment of the
court in the 1950 case and in particular to the reasons why the court came to
the decision to dismiss the plaintiffs’ case and contended that everything that
was in controversy in the 1950 case was in controversy in the present case.
Referring to the plan Exh. D, he submitted that the subject matter of the
1950 case is the area verged green and not the area verged pink as contended
by the learned Counsel for the defendants. He subtnitted that since the area
verged yellow in Exh. E. was put in issue in the 1950 case, although not
claimed as such, any decision reached by the court in respect of that portion
of land cannot relitigated again for the matter then becomes issue estoppel. It
was argued that since all the issues in controversy between the parties in the
1933, 1935 and 1950 cases were found against the Umuleri people, the court
should hold that they are now estoppel from putting forward their claim of
ownership in respect of the area verged yellow in Exh. E. Plaintiffs secood
ground of claim it was submitted, is based on acts of user. He referred to the
evidence of the plaintiffs and their witnesses and in particular, the witnesses
from Umuoba Anam. No witnesses were called by the defendants from
Umuoba Anam. The stranger elements on the land consisting of the Ijaws,
Nupes, Hausas and Yorubas were put on the land in dispute by the Aguleri
people. He urged the court to hold that the 1st defendant, the defendants’ star
witness is not a witness of truth. The preponderance of evidence before the
court shows that the land in dispute belongs to the plaintiffs. The absence of
any houses or farms by Umuleri people between the area verged pink and
green in Exh. D, supports the plaintiffs’ case that it was after the 1950 case
that the Umuleris flooded the land in dispute with their buildings. Learned
Counsel draw the attention of the court to the fact that along the tarred road
from Oyeagu Abagana to Anambra Waterside, the land adjoining the land in
dispute is Aguleri land. The court was urged to find as a fact after referring
to the various grants made by the Aguleri people to U.A.C., John Holt,
C.F.A.O. and Umuoba Anam that the Umuleris were on the land in dispute
as tenants of Aguleri people. Learned Counsel submitted that after
considering the evidence led for the defence, the court should hold that the
preponderance of evidence for the plaintiffs was not in the least shaken. The
court was urged to hold that the plaintiffs had discharged the onus placed on
them by law and that a consideration of the whole evidence led entitles the
plaintiffs to judgment in terms of their claim. In respect of the 1898 grant by
the Umuleris to the Royal Niger Company, learned Counsel referred to the
judgment on appeal by Graham Paul, J. in the 1933 case. He subtmitted that
after considering the evidence led in this case, the court is not in the position
as it was in the 1950 case when it held that there was nothing to choose
between the evidence of the parties. It was contended that various acts of


ownership by plaintiffs have been addueced to tilt the balance of probability
in their favour. On the issue of Res Judicata, learned Counsel cited the
following authorities Bell v. Homes (1956) 3 A.E.R. 449 at p. 454; Fidelites
P.P.L.r. 181 at p. 197; Marginson v. Blackburn Borough Council (1939) 1
All E.R. 273; Randulph v. Tuck (1962) 1 Q.B.D. 175 at p. 183. Reference
was made to Spencer Bower and Turner on Res Judicata 2nd Ed. pp. 11, 14,
88 and 185. It was finally submitted that although the Otuocha market is
situate within the land in dispute is vested in the Local Government, any
declaration made in favour of the plaintiffs should include the market. In
support of this submission, learned Counsel cited Titus Shogune & Ors. v.
Amusa Akerele (1967) N.M.L.R. 58 at p. 59.

 

Mr. Onyiuke in his reply, submitted that issue estoppel must be subject to
the rules of pleadings and supported this submission by citing George &
Ors. v. Dominion Flour Mills Ltd. (1963) 1 All N.L.R. 71 at p. 77;
Ekpenyong & Ors. v. Chief Akibayi (1973) Prt. 13 E.C.S.L.R.412.

 

The area of Otuocha land claimed by the plaintiffs in this case is not in
dispute. It is the area verged yellow in their plain No. Po/360/75, Exh. E.
There is however some triffling controversy as to the area of the land in
dispute in the 1950 case. It is Chief Fani-Kayode’s contention that the land
now in dispute is the very piece of land in dispute in the 1950 case. He
referred to Exh. D, which is the plan of the land in dispute in the 1950 case
filed by the Umuleris as the plaintiffs in that action. In Exh. D the legend
describes the Otuocha Umueri land claimed by the plaintiffs as verged
Green. Indeed the land in dispute verged yellow in Exh. E is a
superimposition of the area verged green in Exh. D. This is however not
conclusive. In the last paragraph of their statement of claim in the 1950 case,
the Umuleris pleaded as follows:

“The plaintiffs therefore claim:

1. A declaration that the said land known as Otu-Ocha and edged pink
on the plan filed with the statement, save the area edged yellow, is the
property of the plaintiffs’ people.

2. A perpetual injunction to restrain the defendants and by their agents
and servants and towns people from going on the land without the
consent of the plaintiffs."

Hubbard, F.J. in his judgment on appeal to the Federal Supreme Court
described the land in dispute as follows

"The claim was for a declaration of title to a piece or parcel of land
known as Otu-Ocha situated at Umuleri in Onitsha Division and more
particularly delineated and edged pink on a plain to be filed in Court.
The area edged pink can be clearly seen on the plan."

The Privy Council after describing the boundaries of the land concluded its
description of the land as follows:

 

“It is shown surrounded by a pink verge line on a plan which was
exhibit “p” in the present action.”

It is clear therefore that the land in dispute in the 1950 case is the area
verged "pink" in Exhs. E and D and described in the legend in Exh. E as
"The area surrendered by the Royal Niger Company verged pink" and in the
legend in Exh. D as "Original grant to the Royal Niger Co. Ltd. by plaintiffs
and surrendered by Government."

Apart from the traditional evidence which has been wisely abandoned by the
parties, it seems clear from the evidence led by the parties that what has been
canvassed in this case is virtually what the parties had canvassed in their
previous litigations.


Chief Fani-Kayode expressed this view in his closing address. It is not in
dispute that Otuocha is occupied by the two communities each exercising
acts of ownership over the land or portions of it. Hurley, J. in his judgment
in the 1950 case had this to say:

"Otuocha is occupied by members of both communities who are
parties to this action. They have been there together, or have
performed acts of ownership side- by-side, for over thirty years
according to the testimony of the plaintiffs' witnesses in this action
and for about sixty years according to the defence testimony. Briefly,
the case made by each side is that they are the owners of the land from
the beginning and have allowed the other side to come on it."

 

Waddington, J. in the 1935 case observed as follows:

"One point should be mentioned on which I do believe Idigo, and.that
is that for the past ten years, farmers of both villages have used the
land, a situation which is consistent with neither possessing exclusive
rights of ownership."

For the plaintiffs; I find as established the following acts of
ownership.In.1894 they made a grant of the Ofianwagbo beach, which is on
the West bank of Anambra river within the land in dispute to the Roman
Catholic Mission. On the defendant own admitted evidence Chief ldigo, the
King of Aguleri moved to settle on a portion of the land in dispute with his
whole retinue as a king and the members of his family in 1915. I do not
believe the defendants that Chief Idigo of Aguleri settled on the land in
dispute with their permission. Their version of the circumstances under
which Chief Idigo left the Christian village to settle on the Otuocha land
sounds more like a fairy tale. No reasonable community would allow a king
as powerful and influential as Chief Idigo was reputed to be, to settle on its
land, not as an exile, but as a reigning king and from there rule his kingdom
which is within the neighbourhood. From, 1924 onwards the plaintiffs made
numerous open dispositions of parts of the dispute Otuocha land without
opposition from the defendants. In 1924 they leased a plot to the Royal
Niger Company. In 1926 and 1932, they leased riverside plots to Jonh Holt
and to the C.F.A O. in 1931. All these companies.have abandoned their
holdings and the present occupiers of their former business premises hold
the premises as tenants of the plaintiffs. Then there were the various grants
of portions along the bank of the Anambra river to stranger elements
comprising tbe Hausas, Yorubas; Ijaws and Nupe communities I do not
believe the defendants that these stranger element were settled on the land
with the European companies with whom they came on the land to work as
labourers. I accept plaintiffs' case that these strangers carne to settle on the
land to fish and trade with their permission. In addition to these acts of
ownership plaintiffs live and farm on portion of the Otuocha land. Both their
Plan Exh. E and the defendants’ plan Exh. P show a heavy concentration of
their settlement north of tarred road leading from Oye Agu Abagana to the
Otuocha.waterside. There.is the Umuoba Anam settIemet on the land which
took place in 1910. If this issue is still at large, I would have held that the
story is neither here nor there, From the evidence of the witness from
Umuoba Anam both the plaintiffs and the defendants collected cows,yams
and fishes from them before allowing them to settle on the land. Hurley,
J.however appeared to prefer the plaintiffs' case that the Umuoba Anam
people were settled on the land in dispute by the plaintiffs in his judgment in
the 1950. The issue is therefore closed and i do not intend to re open it.

 

For the defendants on the other hand I find established that as far back as
1898, they were on the west bank of the Anambra River. Hurley, J. in the
l95O case found that they had two ferry stations on the left bank and that
they used these ferry stations for the purpose of going over to the other bank
of the river to farm there. In 1898 they made a grant of the portion of
Otuocha land verged pink in Exh. E and D to the Royal Niger Company. Of

this grant to the Royal Niger Company the Federal Supreme Court had this
to say:

“I am inclined to think that the Aguleri must have known of the 1898
grant by the appellants to the Royal Niger Company. The company
was active that year along the Anambra River. In January, 1898, it
acquired two tracts of land from the Aguleri above the Emu stream
and five months later it acquired the land in dispute from the Umuleri
and built some small zinc houses on it, although they were abandoned
after three years. I think the doings of the company must have been
the common talk of the riverside, but even if this be true, it obviously
cannot be assured that the Aguleri know the extent of the grant. All
they would have known would have been that the Umuleri had made a
grant to the company, but would have no reason to suppose it
extended beyond the land effectively occupied by the appellants,
which, at that date, were the two ferry stations, at one of which they
had a juju."


This brings me to the rival claims by the parties of the Odakpa juju situate
on the land in dispute and shown by the Umuleri people in their plans Exhs.
D, O and P respectively. The defendants have consistently claimed
ownership of the juju. Much weight was not placed on it in the 1933 case
because the District Officer doubted its antiquity. Plaintiffs for the first time
claimed the ownership of the juju in the 1950 case. The finding of Hurley, J.
of that the juju was not an old-established juju in 1933 was not supported by
the Federal Supreme Court. Hubbard, F. J. observed that the antiquity of the
juju was not challenged by the Aguleri people in the court below but its
ownership. He found that it was the Umuleri people who own the juju. What
weight was placed on it in the claim of Umuleri people to be in effective
occupation of the whole Otuocha land in dispute is a different matter. Before
me the plaintiffs still claim that the Odakpa juju belongs to them. I do not
believe them. I am satisfied and find as a fact that the juju belongs to the
defendants. The defendants as was established in the 1930 case between
1910 and 1920 allowed the Church Missionary Society to build a church
near the Akor stream apparently without objection from the plaintiffs. In
1925 or 1926, they allowed the Church Missionary Society to build a church
and a school on a new site, again without any objection from the plaintiffs.
Again, like the plaintiffs, the defendants live and farm on the land in dispute
with their settlement heavily concentrated south of the tarred road.


The defendants’ three attempts to establish exclusive ownership of the land
in dispute failed. I have been urged to take this fact into consideration in
evaluating the strength of the plaintiffs case. There is no doubt whatsoever
that with the reverses they had suffered in their previous actions, the
defendants have been placed in some tight corner in the conduct of their
defence in this case. They cannot be heard to say that the land in dispute
belongs to them, this issue having been decided against them in the 1950
case. It seems to me however, that as plaintiffs seeking for a declaration of
title, the onus is now on the Aguleri people to prove acts of ownership
extending over a sufficient length of time, numerous and positive enough to
warrant the inference that they are the exclusive owners of the land in
dispute - Ekpo v. Ita XI N.L.R. p. 68. They have to succeed on the strength of
their own case and not on the weakness of the defendants’ case - Kokilinye
v. Mbanefo Odu 2 W.A.C.A. 336. Can I from the acts of ownership which
plaintiffs have established rightly draw the inference that the plaintiffs are
the exclusive owners of the land in dispute? It seems to me that in
determining whether plaintiffs are the exclusive owners of Otuocha land,
defendants established acts of ownership cannot be ignored. Each party
claims to have permitted the other party to settle on the land as its tenants. I
have stated that I do not believe that it was the defendants who permitted
Chief Idigo to settle on a portion of the Otuocha land with the members of
his family. Neither do I believe plaintiffs that the defendants settled on any
portion of the land in dispute with their permission. In plaintiffs’ favour is
the affidavit sworn to by Chiefs Okoye and Onowu of Umuleri in 1922 when
the lease of 1924 to the Niger Company was in contemplation that the
Aguleri were the rightful owners of a portion of the land in dispute. In my
view that in itself is not conclusive evidence that plaintiffs are the exclusive
owners of the land in dispute. Although it was found established that the
Umuleri were in occupation of two ferry stations in Ofianwagbo and have
their Odakpa juju there, the Federal Supreme Court in the 1950 case did not
consider these to warrant the inference that Umuleri people were the
exclusive owners of Otuocha land. About the Odakpa juju the court
observed as follows:

"The true ground for placing no weight on the existence of this “juju”
is, in my opinion, that it was erected there by the applicants as
occupiers of Ofianwagbo only and cannot possibly be deemed to
indicate occupation of the whole area in dispute."

I have been urged to hold that it was after the defendant lost the 1950 case,
that they flooded the land in dispute with their buildings. I do not agree with


this contention. In the 1950 case the plaintiffs filled their plan of the land in
dispute. It is plan No. CC58/51 which was admitted as Exh. K in this
proceedings. On this plan was shown by the plaintiffs many Umuleri
houses, scattered farms and huts of Aguleri and Umuleri, mixed farms and
farm huts of Aguleri and Umuleri. There is no doubt that since then many
more houses have been built on the land by the defendants. The plaintiffs
themselves have done the same. Whatever the historical reason may be, it is
my view that the Otuocha land "between the Emu and Akar streams was a
vacant piece of land and that it was the Urnuleri people who first infiltrated
into it in the late 19th century. What followed there after was a race between
the parties to establish acts of ownership by occupation and grants to tenants
of portions of the land. In Omonbene Kobina Foli v. Chief Obang Akosse
(supra) Lord Thankerton delivering the judgment of the Privy council stated
thus:

 "In questions of disputed ownership of land, occupation and
possession of portions of the disputed area is not relevant evidence of
title to the whole area unless it can be reasonably attributed to a right
to the whole area. The Portion so occupied may be so numerous and
so closely adjoining that they practically cover the whole
area…………………..Alternatively, the occupation of a portion may
be reasonably attributable to a right of ownership in a larger area, as,
for instance, occupation of a portion of a field.”

 

It is my view that no such consideration exists in the present case for the
purpose of raising the inference of ownership of the whole area of Otuocha
land claimed by the plaintiffs.

I was addressed at length on the issue of res judicata. I accept the submision
of Chief Fani-Kayode that having lost the claim in the 1950 case, the
defendants cannot be heard to say that the land in dispute belongs to them.
This however will be in respect of the area of the land verged pink in Exh. E,
which was the subject matter of the 1950 case. The area verged yellow
beyond the pink verge in my view is still at large. I also accept the
submission of Mr. Onyiuke that notwithstanding that the defendants lost in
the 1950 case, they can strenuously dispute plaintiffs’ claim of ownership of
the land in dispute. Uzonwanna Nwakuche v. Matthew Akueze & Ors.
(supra) relied upon by the plaintiffs would not apply to the facts of this case.
In that case the people of Ossu claimed a declaration of title to a piece of
land and lost. The claim was dismissed on merit. Then the defendants in
that case, the people of Abatu sued the people of Ossus claiming the same
land. They denied the title of Abatu people and setting up their own title in
their pleading. Palmer, J. held that although the defendants were not
estopped from defending the action and denying the plaintiffs’ title, they
were estopped doing so by setting up their own title, since this was the very
issue already decided by a court of competent jurisdiction in previous
litigation between the same parties. Judgment was then entered for the
plaintiffs’ since the pleadings raised no other defence.

Waddington, J. in the 1933 case stated as follows:

 
“One point should be mentioned on which I do believe Idigo, and that
is that for the past ten years farmers of both villages have used the
land, a situation which is consistent with neither possessing exclusive
rights of ownership. Those considerations can, in my opinion, lead to
only one result and that is that upon this evidence it is impossible to
draw any definite conclusion.”

In the 1950 case the Privy Council observed thus:

“Their Lordships do, however agree with the view to be collected from
Hubbard, F.J’s judgment as a whole that little, if any assistance is to be
found in the various acts of ownership on either side which took place
between 25th June, 1898, and the abandonment of the land by the Crown.’

 

 

IN THE SUPREME COURT OF NIGERIA HOLDEN AT LAGOS

ON FRIDAY THE 1ST DAY OF JUNE, 1984

BEFORE THEIR LORDSHIPS

 

AYO GABRIEL IRIKEFE JUSTICE, SUPREME
COURT

MOHAMMED BELLO JUSTICE, SUPREME COURT

ANDREWS OTUTU OBASEKI JUSTICE, SUPREME
COURT

KAYODE ESO JUSTICE, SUPREME COURT

AUGUSTINE NNAMANI JUSTICE, SUPREME
COURT

 SC. 65/82

 

BETWEEN:

GEORGE OKAFOR & 3 ORS. - APPELLANTS


 

AND

EZE A. E. IDIGO III & 5 ORS. - RESPONDENTS

 

JUDGMENT

(Delivered by IRIKEFE, J.S.C.)

 

The parties in this case live “together cheek and jowl” as it were on the land
in dispute. They have so lived for over a century. The basis for this current
litigation is the desire by the Aguleris to obtain a declaration of title over
OTUOCHA LAND (the land in dispute) as against the UMULERIS who had
failed in two similar attempts. The quest for title, which must necessarily
derive from exclusive possession of the disputed land, will forever elude
either of the parties herein – and a more practical example of a stalemated
situation will be difficult to come by.

 
The learned trial judge in the court of first instance emphasized the above
state of affairs when he stated:-

 “May I however, sound a note of warning to

 the defendants. In dismissing the plaintiff’s

 case, I have not decided that Otuocha land

 belongs to the defendants. It is my view that

 neither side can establish exclusive ownership

 of the whole of Otuocha land.”

 
Other than the foregoing, I agree completely with the reasoning and
conclusions so ably and meticulously expressed in the lead judgment just
read by my learned brother, OBASEKI, J.S.C. I also would allow this appeal
and restore the judgment of the court of trial in this matter. I adopt the order
on costs made by OBASEKI, J.S.C.

 

CHIEF F.R.A. WILLIAMS, S.A.N. with him G.C.M. ONYIUKE, S.A.N.

Prof. U.U. Uche, Mrs. Peter-Okoye, V.J. Okoye and H. Okechukwu for
appellants.

G.N.A. OKAFOR with him CHIEF D.B. ONYALI for respondents.

 

IN THE SUPREME COURT OF NIGERIA HOLDEN AT LAGOS

ON FRIDAY THE 1ST DAY OF JUNE, 1984


BEFORE THEIR LORDSHIPS

 

AYO GABRIEL IRIKEFE JUSTICE, SUPREME
COURT

MOHAMMED BELLO JUSTICE, SUPREME COURT

ANDREWS OTUTU OBASEKI JUSTICE, SUPREME
COURT

KAYODE ESO JUSTICE, SUPREME COURT

AUGUSTINE NNAMANI JUSTICE, SUPREME
COURT

 SC. 65/1982

 

BETWEEN:

GEORGE OKAFOR & 3 ORS. - APPELLANTS

 

AND

EZE A. E. IDIGO III & 5 ORS. - RESPONDENTS

 

JUDGMENT

(Delivered by Bello, J.S.C.)

 

I had a preview of the judgment of my learned brother, Obaseki J.S.C. in
which he has exhaustively considered all the issues canvassed in this appeal.
I agree with his reasoning and conclusions that upon a proper perusal of the
1933, 1935 and 1950 cases between the parties together with the facts of the
case now on appeal relating to the acts of ownership by doth parties over
some prisons of the land in dispute as found by the trial judge, no reasonable
tribunal would declare any of the parties, i.e. either the Umuleri people or
the Aguleri people; as the exclusive owners of entire area of the land in
dispute; to wit the Omuocha land. Consequently the court of appeal erred in
law in granting a declaration of title to the Aguleri people.

 

The appeal accordingly allowed. The decision of the court of appeal
including the order as to costs is herby set aside and in its stead the judgment
of the trial court dismissing the claim of the Aguleri people is restored.

 

The Respondents shall pay the Appellants costs in the Court of Appeal
assessed at N200 and in this Court at N300.

 


 (Mohammed
Bello)

 Justice, Supreme
Court

 

 

IN THE SUPREME COURT OF NIGERIA HOLDEN AT LAGOS

ON FRIDAY, 1ST JUNE, 1984

BEFORE THEIR LORDSHIPS

 

AYO GABRIEL IRIKEFE JUSTICE, SUPREME
COURT

MOHAMMED BELLO JUSTICE, SUPREME COURT

ANDREWS OTUTU OBASEKI JUSTICE, SUPREME
COURT

KAYODE ESO JUSTICE, SUPREME COURT

AUGUSTINE NNAMANI JUSTICE, SUPREME
COURT

 SC. 65/1982

 

BETWEEN:


1. GEORGE OKAFOR & 3 ORS.

2. RUDOLF OMENYI

3. IGNATIUS EKWONU DEFENDANTS / APPELLANTS

4. IVEACHO UDEVI

 (For themselves and on

 behalf of the people of Umuleri)

 

AND

1. EZE A. E. IDIGO III & 5 ORS.

2. ANAGO ANEKWENSI

3. NNEKWUO MELIKAM

4. OGUO AGBASIONWA PLAINTIFFS/RESPONDENTS

5. JAMES CHINWUBA

6. H. M. ONWUEGBUKE

 (For themselves and on

 behalf of the people of Aguleri)

JUDGMENT


(Delivered by Obaseki, J.S.C.)

 

The parties to this appeal have been locked in litigation over a piece of land
called Otuocha for a period of over 50 years. Since 1933, four actions have
been instituted in the superior court of record in this country. The first was in
1933, the second in 1935, the third in 1950 and this action now on appeal in
1975. The 1933, 1935 and 1950 actions were instituted by the Umuleri
people (the appellants herein), while this action was instituted by the Aguleri
people (the respondents herein).

 

The main issue or question for determination in this appeal is whether the
ownership to the land in dispute i.e. Otuocha land has been established as
required by law to entitle them, i.e. the Aguleri people to the declaration of
title granted them by the Court of Appeal, the High Court having held a
contrary view.

 

The genesis of this matter briefly, is as follows:

 

On the 12th day of June, 1975, the respondents instituted an action Suit No.
0/98/1975 against the appellants in the High Court of the East Central State
of Nigeria claiming in terms of the writ:

 

1. Declaration of title to a piece of land known as Otuocha in this
Judicial Division i.e. Onitsha Judicial Division.

 

2. Perpetual injunction to restrain the defendants, their agents, servants
and assigns from building houses on or trespassing into portions of
this land.

 

On the order of the court, pleadings were filed and delivered or served and
the issue joined came up for hearing before Nnaemeka-Agu, J. Nnaemeka-
Agu, J. in the course of the trial, after hearing the evidence of 5 witnesses
called by the plaintiffs, was appointed a Justice of the Court of Appeal and
had to discontinue the hearing. The matter then came up before Umezinwa,
J. He began the trial de novo. He heard the evidence of the parties and their
witnesses – 14 witnesses testified at the instance of the plaintiffs while 7
witnesses testified at the instance of the defendants. After the close of the
defence, the court inspected the locus in quo, i.e. the land in dispute. At the
conclusion of the inspection, the learned trial judge heard the addresses of
counsel for the parties and adjourned for judgment. He finally delivered his


judgment on the 12th day of June, 1978 dismissing the plaintiffs’ claim in the
following terms:

 

“Waddington, J. in the 1935 case stated as follows:

 

“One point should be mentioned on which I do believe Idigo, and that is that
for the past 10 years farmers of both villages have used the land, a situation
which is consistent with neither possessing exclusive ownership. Those
considerations can, in my opinion, lead to only one result and that is that
upon this evidence, it is impossible to draw any definite conclusion.”

 

“In the 1950 case, the Privy Council observed thus:

 

“Their Lordships do however agree with the view to be collected from
Hubbard, F.J.’s judgment as a whole that little, if any assistance is to be
found in the various acts of ownership on either side which took place
between 25th June, 1898 and the abandonment of the land by the Crown.”

 

Having considered the whole evidence led in this case and the
submissions made, I have found myself in no better position to draw
any definite conclusion. The plaintiffs have not proved to my
satisfaction on the balance of probability that they are the exclusive
owners of the land in dispute. Plaintiffs’ claims therefore fail and are
accordingly dismissed.”

 

The Plaintiffs were dissatisfied with the decision and so appealed to the
Federal Court of Appeal against the judgment. Three grounds of appeal were
filed. They were, in the main, grounds of fact or of mixed law and fact and
briefly are as follows:

 

1. The decision is against the weight of evidence;

 

2. The learned trial judge seriously misdirected himself in fact and in
law when he held as follows: “whatever the historical reason may be,
it is my view that the Otuocha land between the Emu and Akor
streams, was a vacant piece of land and that it was the Umuleri people
who first infiltrated into it in the late 19th century,” because: there was
no evidence of such facts which could support the learned judge’s
finding………………………………………..”

 


3. The learned trial judge erred in law in treating rather scantily the
evidence of the affidavit sworn to by Chief Okoye and Onowu of
Umuleri in 1922, and not giving it the weight due to it as a solemn
admission by the Umuleri people that the land in dispute belonged to
Aguleri, especially as it was made when there was no pending action
or when one was in view, and thereby came to a wrong decision.”

 

The Federal Court of Appeal allowed the appeal. The three Justices of the
Court of Appeal (Phil-Ebosie, Olatawura and Belgore, JJCA.) unanimously
granted the declaration of title claimed. They were divided on the claim for
an order of injunction. Phil Ebosie and Olatawaru, JJCA. limited it to
unoccupied land in plaintiffs’ plan No. PO/E/360/75 while Belgore, JCA. on
the other hand, granted the injunction over the area of land known as
Otuocha. In his own words, the learned Justice, Belgore JCA. said:

“I shall allow this appeal, and set aside the trial judge’s dismissal of
the plaintiff’s / appellant’s case.

I enter a verdict of judgment for the plaintiffs / appellants as claimed
that the title to the land known as Otuocha in Onitsha Judicial
Division belongs to Aguleri people as represented by plaintiffs and
perpetual injunction against the defendants / respondents, their agents,
servants and assigns from building houses on or trespassing into
portions thereof.”

 

The concluding portion of the judgment of Olatawaru, JCA. concurred in by
Phil Ebosie, JCA. reads:

 

“It appears to me that by the dismissal of the plaintiffs’ case the land
does not belong to the plaintiffs. This is incongruous. The chequered
history of this case reveals these two communities, Aguleris and
Umuleris, to be claimants. The order of dismissal certainly means that
the land does not belong to Aguleris either. The worst he could have
done was to have non-suited their claims.

 

However, the learned judge has found many acts of ownership in
favour of the appellants. I will grant the declaration of title in their
favour. The appeal is allowed to the extent that they are the owners of
the land in dispute. I cannot grant injunction against the respondents,
as this will work great hardship on the Umuleri community. The visit
to the locus in quo reveals that there are in existence houses of the
Umuleris. The injunction granted is now limited to the unoccupied


land in plaintiff’s plan No. PO/E/360/75. It is to this extent that the
appeal succeeds.

 

All the Justices of the Court of Appeal reversed the decision of the High
Court and granted the declaration of title sought. Two of the Justices,
however, felt unable to grant the injunction claimed and limited the order of
injunction granted to the unoccupied portions of the land in dispute. The
defendants were aggrieved by the decision of the Federal Court of Appeal
(as the Court of Appeal was then called) and appealed to this Court on many
grounds. They were lengthy grounds and the most important ones are as
follows:

 

“1. Error in Law

The Federal Court of Appeal erred in law and in fact in setting aside
the decision of the learned trial judge dismissing the plaintiffs’ /
respondents’ claim of title to and injunction in respect of the land in
dispute as the grounds on which the learned trial judge based his
decision were neither wrong in law nor perverse or against the weight
of evidence grounds to wit:

 

(a) that neither side can establish exclusive ownership of the whole of
Otuocha land (land in dispute)

(b) that the defendants/appellants are in long and effective occupation of a
substantial portion of the land in dispute.

(c) that the land in dispute in the present proceedings is larger than the
area covered by the 1950 suit Exhibits ‘A’, ‘B’ and ‘C’ and that the
defendants / appellants are not estopped from leading evidence of
ownership and possession in respect thereof.

 

2(A) The leaned Federal Court of Appeal judge (Olatawaru, JCA.)
misdirected himself in law and in fact in the following passages of his
judgment:

 

(a) “what is the defence open to them? As far (as) (sic) the record is
concerned, it is that they are in effective possession and that they were
there without the permission of the other side, i.e. the appellants. This
is the finding of the learned trial judge also. This finding appears to
me that the land is a no man’s land. It should be noted that the
Aguleris and Umuleris are two separate communities, one must be the


owner. The traditional history was not pursued, the claim and defence
are based on acts of ownership.”

(b) It appears to me that by the dismissal of the plaintiffs’ case, the land
does not belong to the plaintiffs. This is incongruous. The chequered
history of this case reveals these two communities Aguleris and
Umuleris to be claimants. The order of dismissal certainly means that
the land does not belong to Aguleris either.

 

 The worst he could have done for them was to have non-suited their
claim.”

 

PARTICULARS OF MISDIRECTION

 

(i) The learned Federal Court of Appeal judge failed to appreciate that a
situation where a tract of land between two separate communities may
not belong exclusively to either community is a recognized feature of
native customary land tenure especially in this case where the
plaintiffs/respondents relied exclusively on possession and acts of
ownership to prove title to the whole land in dispute.


Vincent Okorie V. Philip Udom 1960 5 FSC. 162


(ii) There is no principle of law which compels the learned trial judge to
non-suit the plaintiffs/respondents instead of dismissing their claim in
the circumstances of this case where the plaintiffs/respondents failed
to prove exclusive ownership of the whole land in dispute.


(iii) X X X X X X X X X X X

 
(iv) The reasoning of the learned Federal Court of Appeal judge destroys
the well established principle of law that the dismissal of a plaintiff’s
claim of title to land does not decree title in t he defendants nor relieve
the defendant of the burden to prove his title in an action brought by
him.


3. The Federal Court of Appeal misdirected itself on the question of
number and age of buildings standing on the land covered by the res
judicata (Exhibit ‘D’) and wrongly overruled the learned trial judge
who had the opportunity of hearing and seeing the witnesses and of
inspecting the locus in quo and by such misdirections arrived at a


wrong conclusion, misdirections especially manifested in the
following passages of the judgments of the learned Federal Court of
Appeal judges, to wit:

 

(a) Olajide Olawataru (JCA.)

“Chief Onyiuke has in my view rightly posed a question which goes
to the basis of the claim. It is: how can the appellants now explain
how the substantial parts of the land being claimed are in the effective
occupation of the respondents? The answer must be found in the
record. Counsel pointed out that it was not pleaded they were there
with the appellants’ consent. During the re-examination of p.w.1. –
Eze Alphonsus Ezeudu Idigo III, on page 68 of the record, said:
‘Umuleri people are our tenants on the land in dispute. After the 1950
case, Umuleri people without our permission entered the land in
dispute and built many houses on the land. That is why we took out
this action against them’ What did the learned trial judge say about
this? He said he did not believe either side in their claim that one is
the tenant of the other. It is better to quote him.

 

‘I have earlier stated that I do not believe that it was the defendants
who permitted Chief Idigo to settle on a portion of Otuocha land with
the members of his family. Neither do I believe the plaintiffs that the
defendants settled on any portion of the land in dispute with their
permission.”

 

Neither did the learned judge believe that the defendants flooded the
land in dispute with buildings after the 1950 case.’

 

Again, in another passage of the same judgment, he said:

“The position of the deponents should have been considered. It is
under these grounds that Chief Onyiuke raised the question of
building by each community. Aguleris in the north and Umuleris in
the south. If one compares the plan used by the respondents in the
1950 case, i.e. Exhibit ‘D’ and Exhibit ‘P’ used by them in this case
on appeal, one can se that there were only few houses of Umuleris in
the south.”

…………………………………………………………………………
…….

 

PARTICULARS OF MISDIRECTION


 

The learned Federal Court of Appeal judges arrived at their conclusion on
the state, number and age of the buildings shown on Exhibit ‘D’ in utter
disregard of

 

(i) The evidence in this case of the very surveyor who made the plan and
explained the meaning and significance of the survey symbols he put
on the said plan. Josephus Theophilus John (D.W.I) who testified in
part as follows:

 

“I am a civil engineer and licenced surveyor. I know the defendants. I
remember that 1950 case between Umuleri and Aguleri. I made a plan
of the land in dispute for Umuleri people I visited the land. That was
my second visit I have earlier visited it in 1934. Exhibit ‘D’ is the
plan, I saw all the features I put on the plan…………As a result of
what Umuleri showed me, I produced the plan Exhibit ‘D’ and
showed the area verged pink. I also showed the area verged green as
the Otuocha claimed by the plaintiffs in the 1950 case. The area
hatched shows a concentration of Aguleri buildings. The plan was
made in 1951.

 

The conclusions of the Federal Court of Appeal judges are at variance
and in conflict with the inspection notes of the learned trial judge
especially the following passages thereof

 

“After James Chinwuba's house on the same side of the tarred road
was shown a number of houses. of Umuleri people. The houses are
not recently built. One of them is a storey building of some long
duration. And following a footpath off the tarred road and far inside
are houses, belonging to Umuleri people, about one or two are of
recent construction, the rest being in existence for a long time. Two
Aguleri houses within the same vicinity were shown to me. These are
old houses. Conceded by the plaintiffs that from this point along the
road facing the Anambra River most of the houses on the left side of
the tarred road belong to Umuleri. The houses are quite old, and most
of them have been in existence for a long time. Along the road on the
same left hand side of the road where the houses of the Umuleri
people terminate most of the houses are very old. I saw a few
buildings in their midst recently constructed."


4. The Federal Court of Appeal erred in law and in fact to grant
declaration of title to the plaintiffs/respondents to the land in dispute
in the face of and in spite of the unexplained fact that admittedly
substantial portions of the land in dispute are in the long and effective
occupation of the defendants/appellants
………………………………………………………..

 

5. The learned Federal Court of Appeal judge (Alfa Belgore, JCA.)
grossly misdirected himself and/or misread the facts and made wrong
assumptions which1ed him to the unwarranted, unjustified and wrong
conclusion that the judgment of the learned trial judge was perverse."

 

The question raised in all these grounds of appeal was adroitly and concisely
put by Chief F.R.A. Williams, SAN. in the brief filed by the appellant. It is

 

“Whether there were any (or any adequate) grounds upon which it
was justifiable for the Federal Court of Appeal to reverse the findings
of the learned trial judge (based on the oral evidence together with the
history of the numerous litigations between the two parties) that
neither of the 2 parties could lay claims to exclusive ownership of the
land in dispute.”

 

There is no doubt that the decision of the Federal Court of Appeal
involved a disturbance of the findings of fact arrived at by the learned
trial judge. An examination of the plaintiffs/respondents’ statement of
claim reveals that the plaintiffs/respondents set out to establish their
title not by evidence of traditional history of ownership but by
evidence of positive and numerous acts of ownership spreading over a
long period of time. As the amended statement of claim is short, it is,
in my view, desirable to set it out for easy reference in this judgment.
It reads:

"1. The plaintiffs are natives of Aguleri in Anambra Division of the East
Central State and institute this action for and on behalf of themselves
and the people of Aguleri.

2. The said plaintiffs are authorized by the said Aguleri people to
institute this action against the defendants.

3. The defendants are natives of Umuleri and are sued personally and for


and on behalf of the people of Umuleri.

4. The land in dispute lies on the left bank of the Anambra River which
forms its north-western boundary. It is bounded on the north-east by
the Emu stream, a tributary flowing into the Anambra River from the
south-east and on the southwest by the Amor River, another tributary
of the Anambra River which joins it from the south-east at a point
further down stream. The south-east boundary consists of an
imaginary line joining the two tributaries. The said land in dispute is
more clearly shown on the plaintiffs’ plan No. PO/E/360/75 that is
Exhibit ‘H’ and therein more particularly verged Yellow in Exhibit
‘H’.

5. The plaintiffs have been owner and have been in possession of the
land in dispute either directly or through their agents or tenants from
time immemorial.

6. The plaintiffs have always and continuously exercised their rights of
ownership over the land in dispute and have even granted customary
rights to members of other communities in that vicinity, in the land in
dispute.

7. The plaintiffs’ have always protected their rights, title and interest in
the land in dispute at all times.

8. In pursuance of paragraph 7 above, the plaintiffs had protected their
rights, title and interest in the land in dispute when the defendants
made several attempts to claim ownership of the said land.

9. The said claims of the defendants against the plaintiffs rights, title and
interest have been successfully resisted by the plaintiffs in suit 0/48/50
WACA 266/1955 and Privy Council No. 4 of 1958 on which plaintiffs
will rely in this action.

10. In suit 0/48/50 Idoko Nwabisi and others v. R. A. ldigo and others
instituted by the defendants against the plaintiffs, the defendants
claimed ownership and title to the land in dispute and the said action
proceeded from the Native Court on appeal to the Privy Council and
the defendants’ claim of ownership and title to the land in dispute was
finally dismissed.

11. In consequence of the facts pleaded in paragraphs 8-10 above the
defendants cannot now be heard to say that they are the owners or
have title to the land in dispute.

 


The plaintiffs thereby rely on the law estoppel.

 

13. The defendants have right, title or interest in the land in dispute.

14. Whereof the plaintiffs’ claim as per their writ of summons.”
(underlining mine)

 

It is therefore clear, particularly from paragraphs 5, 6 and 7 of the amended
statement of claim, that the springboard from which the plaintiffs launched
this action for a declaration of title is their continuous exercise of their rights
of ownership over the entire area of the land in dispute.

 

In view of the findings made in the judgments in previous litigations
concerning the land in dispute pleaded in paragraphs 8 to 10 of the amended
statement of claim which I shall have cause to refer to in detail in this
judgment, the burden of proof undertaken by the plaintiffs/respondents
therein was an impossible task. Moreover, the defendants/appellants filed
and amended statement of defence to the amended statement of claim and
denied categorically the plaintiffs’ acts of possession and ownership over the
entire area of land and the plaintiffs’ claim of ownership. In particular,
paragraphs 6, 7, 8, 10, 11, 13, 16 and 17 read as follows:

 

“6. The defendants vigorously deny paragraphs (5) and (6) of the
amended statement of claim and put the plaintiffs to the strictest
proof.

 

7. In answer to paragraphs (7) and (8) of the amended statement of
claim, the defendants assert that it was they and not the plaintiffs who
had all along, in all good faith, asserted their claims to the land in
dispute or portions thereof and adjacent lands especially Onitsha
provincial suit 2/1933 and Onitsha High Court suit 0/85/1935.

 

8. In answer to paragraphs (9) and (10) of the amended statement of
claim the defendants admit they instituted the suit 0/48/50 against the
present plaintiffs for declaration of land and that the said suit went on
appeal to the Federal Supreme Court (WACA 266/l955) and to the
Privy Council (No. 4 of 1958) and that their claim was dismissed but
they vigorously deny that the extent of the land, the subject matter of
the said suits and in respect of which their claim was dismissed is the
area shown yellow on the plaintiffs amended plan filed in the present


proceedings and will put the plaintiffs to strict proof.

 

10. In answer to paragraph (11) of the amended statement of claim, the
defendants admit that their claim for declaration of title was dismissed
as they failed to establish that they were exclusive owners thereof. The
defendants will rely on acts of ownership and possession of the
portions of the land to establish they were exclusive owners thereof.
The defendants will rely on acts of ownership and possession of
portions of the land then in dispute found in their favour in decisions
in the said suit 0/48/50, WACA 255/1955 and Privy Council No. 4 of
1958, and the grounds of the said decisions.

 

11. In further answer to paragraph (11) of the amended statement of
claim, the defendants assert that the plaintiffs are not the owners of
the subject matter of the said suit 0/48/50, and will put the plaintiffs to
the strictest proof of that title.

 

13. The defendants deny paragraph 13 of the amended statement of claim.
In so far as the area covered by suit 0/48/50 is concerned, the
defendants assert that they have over a long period of time built
numerous houses and other structures on various portions of the said
land and established various institutions thereon without let or
hinderance from the plaintiffs as established in the decisions in the
said case.

 

16. In answer to paragraph (14) of the amended statement of claim, the
defendants vigorously deny that the plaintiffs have title of ownership
to the area verged yellow on their plan attached to their amended
statement of claim or that they are entitled as per their writ of
summons and will put them to the strictest proof thereof.

 

17. The defendants will plead as against the plaintiffs all legal and
equitable defences including:

(a) ownership

(b) Long possession

(c) Laches and acquiescence

(d) equitable relief." (Underlining mine)

 

From the pleadings therefore, issues were joined


(1) as to the ownership of the total area of land in dispute;

(2) as to the effect of the judgments in previous litigations;

(3) as to the acts of ownership carried out;

and (4) as to the area of land in respect of which suit

 No. 0/48/50 was determined.

 

In actions for declaration of title to land, certain well settled principles of
law which have guided the courts in this country must of necessity be kept
constantly in mind.

They are:

1. In a claim for a declaration of title, the onus lies on the plaintiff to
satisfy the court that he is entitled on the evidence brought by him to a
declaration of title. The plaintiff must rely on the strength of his own
case and not on the weakness of the defendants’ case. If this onus is
not discharged, the weakness of the defendants’ case will not help him
and the proper judgment is for the defendant. Such a judgment decrees
no title to the defendant he not having sought the declaration.

 

Lyell V. Kennedy 1882) 20 Ch. D 484 at 490 per Brett, LJ. Kodilinye V.
Mbanefo Odu (1935) 2 WACA 336 per Webber, CJ. at 337; Lee, CJ. in
Martin V. Strachan (1744) 5 Term Rep 107n at 110n.

 

2. In a claim for a decree of a declaration of title, the onus is on the
plaintiff to prove acts of ownership extending over a sufficient length
of time numerous and positive enough to warrant the inference that
the plaintiffs were owners.

 

 Weber, J. in Notoe Ekpo Eta Ekpo V. Eta Eta Ita II NLR. 68 at 69;

 

If the evidence of tradition is inconclusive, the case must rest on a question
of fact.

Webber, J. in Ekpo's case (supra). See also Adeniyi V. Aderemi (1961)
WNLR. 185

 

3. The court should declare a good title where in the opinion of the court
the facts and circumstances of the case are so compelling as to show
beyond reasonable doubt that no risk of a successful future
encumbrance exists. M.E.G.P. V. Christian Edwards (1979) 3 WLR.
713

 


4. Frequent and positive numerous acts within living memory are not
essential to justify the inference of exclusive ownership of land under
native law and custom where there is conclusive traditional evidence
of ownership - Stool of Abinabina V. Eyinmadu (1953) AC 207 (1953)
2 WLR 261 (1953) 12 WACA 172.

 

5. While the plaintiff must succeed on the strength of his own case and
not on the weakness of the defendant’s case, the defendant’s case may
itself support the plaintiff’s case and contain evidence on which the
plaintiff is entitled to rely.

 

6. Demeanour is not a true test of the truth of the testimony on
traditional history. It is little guide to the truth. The best way to test
traditional history is by reference to the facts in recent years as
established by evidence and by seeing which of two competing
histories are more probable.

Kojo II V. Bonsie (1957) I WLR 1225 at 1226 per Lord Denning;
Privy Council judgments 1841-1933 by Chukwurah p. 668 at 671.

 

7. The dismissal of the plaintiffs' claim in an action for a declaration of
title does not mean that the land belongs to the defendant /Nwankwo
Udegbe V. Anachuma Nwokafor (1963) 1 All NLR 417; Privy Council
judgments by Olisa Chukwurah page 994. Eboha V. Anakwenze
(1967) NMLR. 140/. Unless there is a finding on the evidence that the
defendant had established his ownership of the land. Duedu V. Yiboe
(1961) 1 WLR 1040; Amos Ogbesusi Aro V. Salami Fabolude (1983)
2 SC. 75

 

8. Failure to prove title does not affect any rights of possession acquired
over parts of the areas in dispute Okije V. Adejobi (1960) 5 FSC. 44

 

9. Before the plaintiffs can get a declaration of title in their favour they
must prove acts of ownership numerous and positive enough and of
sufficient duration to warrant the inference that the plaintiffs are
exclusive owners. It is not enough to prove that there is a valid and
subsisting judgment which had denied title to the defendants as
against the plaintiff Ekpo V. Ita MNLR. 68 Olisedoze Nwokeleke
& 2 Ors. V. Lesele of Onicha and 10 Others (1955 - 56) WRNLR 87.

 

10. In question of disputed ownership of lands occupation and possession


of portions of the disputed area are not relevant evidence of title for
the whole area unless it can be reasonably attributed to a right to the
whole area Omanhene Foli v. Chief Obeng Akesse (1934) 2 WACA
46 PC

 

Chief Williams, SAN. who argued the appeal as counsel for the appellants
made the point and I agree with him that the appeal involves, in the main,
questions of fact. He therefore took us through the record of proceedings
indicating the findings of facts made by the learned trial judge and the
disturbance of those findings by the learned Justices of the Court of Appeal.
He predicated his arguments with 3 propositions. These are:

 

(1) A judgment dismissing plaintiff's claim for declaration of title is a bar
to any future action by the plaintiff or his privy against the defendant
or his privy for the same relief to the same land but such a judgment
does not necessarily mean that the defendant is adjudged to have title
to such disputed land as against the unsuccessful plaintiff.

 

(2) To determine whether or not a judgment dismissing plaintiff's claim
for declaration of title means that the defendant is adjudged to have
title it is necessary to examine the proceedings and judgment in order
to ascertain the reasons for the dismissal.

 

(3) Where in an action between two communities for declaration of title
each of the parties proved acts of ownership to the disputed lands or
distinct portions thereof so that the court is not prepared to draw the
inference that either of the communities is the exclusive owner, the
action will be dismissed.

 

These propositions are well founded in law and I approve of them.

 

Putting the cases of the parties briefly before the court, Chief Williams,
contended that the respondents’ case is that the appellant claimed a
declaration of title to the land in 1950 and lost and therefore they were
entitled to the declaration of title. He then submitted that the evidence led in
the case was equally insufficient to establish that the respondents were
exclusive owners. The court was entitled to examine the reasons for
judgment and ascertain the issues decided. He contended that the
respondents are not the owners of the land in dispute and have led no
evidence to strengthen their claim of title to the land in this action now on


appeal before this Court.

 

G. N. A. Okafor, Esq., who appeared as counsel for the respondents, agreed
with the 3 propositions put forward by Chief Williams, SAN. He submitted
that the respondents were not relitigating the 1950 case. He also conceded
that they did not contest or disapprove of the primary findings of fact made
by the learned trial judge. Their case, he submitted, is that having made
these brilliant findings, the learned trial judge failed to draw the necessary
conclusions that the respondents were exclusive owners and failed to
proceed, i.e. to grant the declaration of title claimed by the respondents. He
conceded that the acts of ownership by the Aguleris are concentrated in the
north of the land in dispute while the acts of ownership by the Umuleris are
concentrated in the south.

 

This appeal, therefore, in my view, turns on the proper inferences to be
drawn from the findings made and the evidence accepted by the learned trial
judge.

 

What, I may ask, were the findings of fact made by the learned trial judge
which were upset by the Court of Appeal? It does appear from the judgments
of the Justices of the Court of Appeal that they accepted most of the findings
of fact made by the learned trial judge. It is the order of dismissal of the
plaintiffs’ case based on those findings the learned justices of the Court of
Appeal found unacceptable. In other words, the inference drawn from those
findings of fact, i.e. that the plaintiffs were not exclusive owners of the
entire area of land in dispute was not acceptable to the learned justice,
Olatawura, JCA. who, in his judgment, observed and commented as follows:

 

“A careful reading of the record shows the cause of action. During the
re-examination of p. w.1 - Eze Alphonsus Ezeadu Idigo III on page 68
of the record said: Umuleri people are our tenants of the land in
dispute. After the 1950 case, Umuleri people, without our permission,
entered the land in dispute and built many houses on the land. That is
why we took out this action against them. What did the learned trial
judge say about this? He said he did not believe either side in their
claim that one is the tenant of the other. It is better to quote him.

That is true. What is the defence open to them? As far as the record is
concerned, it is that they are in effective possession and that they were
there without the permission of the other side, i.e. the appellants. This


is the finding of the judge also. This finding appears to me (to mean)
that the land is a no man's land. It should be noted that Aguleris and
Umuleris are two separate communities. One must be the owner. The
traditional history was not pursued. The claim and defence were based
on acts of ownership...
............................................................................

The main complaint on grounds 9 and 10 is the failure of the learned
trial judge to come to a definite conclusion. If as concluded, he is
unable to come to a definite conclusion, learned counsel submitted he
should have non-suited. Learned counsel has urged the court, in view
of the evidence before the learned trial judge to give judgment for the
plaintiffs. Counsel pointed out that it was the duty of the learned judge
to make his own findings and ignore the findings of fact in a former
case………………….

 

I do not think that this is a case where a non-suit should be ordered as there
is enough evidence on record to justify a finding in favour of the plaintiffs.
If, as the learned trial judge said in his consideration of the earlier attempts
made by the defendants that ‘There is no doubt whatsoever that with the
reverses they suffered in the previous actions the defendants have been
placed in some tight corner in the conduct of their defence in this case, they
cannot be heard to say that the land in dispute belongs to them this issue
having been decided against them in the 1950 case’, it appears to me that by
the dismissal of the plaintiffs’ case, the land does not belong to the plaintiffs.
This is incongrous! The chequered history of this case reveals these two
communities: Aguleris and Umuleris to be the claimants. The order of
dismissal certainly means that the land does not belong to Aguleris either.
The least he could have done was to have non-suited their claims."
(Underlining mine)

 

Phil-Ebosie agreed with the conclusions reached by Olatawura, JCA.
Belgore, JCA. in his judgment observed and commented as follows:

“It was the judges' view that no act of possession and ownership had been
shown by the Aguleris to justify the inference that they have title over the
land.

The learned judge's decision was therefore based on previous decisions that,
no definite conclusion could be shown as to who has title to Otuocha land.

 


Curiously enough, the parties threw aside the traditional history in this case
but relied on what was available in previous cases. But I must restate that
appellante court will interfere with findings of fact of trial court if such
findings are perverse in view of the evidence before the trial court,
Kodilinye v. Mbanefo Odu 2 WACA 336.
...........................................................................................................................
.

The learned judge never found any act of ownership exercised by the
defendants to rely upon except their recent settlement which were sudden
phenomenon on Exhibit P in this case.
................................................................................................

The defendants’ case has been so discredited by all previous judgments and
as the learned trial judge himself in a passage quoted above found several
acts of ownership in favour of the plaintiffs and disbelieved the claim of the
defendants on these acts of ownership, his conclusion is perverse."
(Underlining mine)

 

A Court of Appeal must, in the absence of compelling evidence indicating
erroneous appraisal of facts and erroneous conclusion, show the utmost
restraint and reject any temptation to interfere with well considered findings
made by the learned trial judge in the court of first instance. The restraint
should be more firmly applied where, as in this case, the learned trial judge,
after hearing evidence of witnesses went on inspection of the locus in quo
and saw with his own eyes the land and what were in it in the search for
truth in the testimonies of witnesses.

 

This court has recently, in the case of Chief Frank Ebba v. Chief Warri
Ogodo & Anor. SC.79/1982 delivered on the 13th day of April, 1984 given
certain guidelines in applying the well settled principles of law on reversal
of trial court findings of fact by a court of appeal.

 

Kayode Eso, JSC. in his judgment observed and advised at pp. 12 to 14:

"As in the Court of Appeal, the appeal here is mainly on facts. I have
set out already the duty of an appeal court when dealing with the issue
of fact by a trial court. I would like to add that, in my respectful view,
the normal error which a Court of Appeal falls into in this regard is
the application of the legal principles. The legal principles are now so
well entrenched and Courts of Appeal refer to them with utmost ease
and correctness. I think with respect, that a practical stance should be


adopted in the application of these principles, otherwise the principles
may become a mere academic statement when in fact it is the
practical stance that is essential. It is herein a Court of Appeal
usually misses the road.

 

An Appeal Court, in applying these principles, should I venture to
suggest,

(a) start with an attitude to the trial court, as the only court which has,
principally, the duty to make findings of fact from the evidence - oral
and or documentary -before it, also that the trial court is a court that
has been specifically suited, by its peculiar constitution, set up and
rules, so to do / _The trial judge sees the witnesses and has (the
exclusive advantage to observe their demeanour _/.

 

(b) then find out whether the conclusion which has been arrived at by the
trial court is justifiable, when it is re-examined against the very
premise and or controversy vel non which formed the basis of the
conclusion arrived at by the trial court.

(c) where the conclusion is arrived at without any real controversy, e.g. in
the case of documentary evidence, or where it does involve a
controversy, the controversy is limited only to number, complexity or
contradiction or interpretation of document or further where there is
oral evidence but it involves merely an admission by the adversary or
there is an unchallenged piece of oral evidence, the Court of Appeal
should consider itself to be in as good a position as the trial court, in
so far as the evaluation of such evidence as aforesaid in this paragraph
is concerned.

 

(d) where the decision arrived at, after there has been an examination of a
controversy (and this is the commonest aspect) as where the opposing
parties produce in the case to contradict each other by oral evidence,
then the Court of Appeal should appreciate that the following will be
relevant:

 

(i) Credibility of witnesses based on demeanours of the witnesses only:-

Here, the trial court is the sole judge as the observation of the
demeanour of witnesses has to be peculiar and exclusive to the trial
court which advantage is not and can never be available to the


appellante court.

 

(ii) Credibility of witnesses based on factors other than demeanour.

The court of appeal should examine those factors which the trial court
examined as a result of which it made the inference which led to its
findings and determine whether that trial court has made use of its
singular advantage of seeing and hearing the witnesses before making
its finding especially having regard to the inference that could
reasonably be made by a just and reasonable tribunal from the same
factors." (Underlining mine)

 

Obaseki, JSC. in his judgment in the same case, Chief Frank Ebba v. Chief
Warri Ogodo & Anor. (supra) supporting those guidelines said at page 5 of
his judgment:

"This Court has times without number emphasised that it is no
business of the Appeal Court to substitute its view of the evidence for
that of the learned trial judge and I find it again necessary to point out
that miscarriage of justice will definitely result from adopting such a
course of action when it is unwarranted. The need to ensure that
justice is not miscarried should always dominate the attitude and
thinking of Appeal Courts when dealing with appeals raising
questions of fact. See Victor Woluchem & Ors. v. Chief Suma Gudi &
Ors. (1981) 5 SC. 319 at 326; Akinloye v. Eyiyola (1968) MMCR. 92
at 95 SC; Obisanya v. Nwoko (1974) 65C 69 at 80 SC; Lawal v.
Dawodu (1972) 1 All NLR (Part 2) 270 at 286; Kakareh v. Imonikhe
(1974) 4 SC, 153; Mogaji v. Odofin (1978) 4 SC. 91"

 

As already stated above, 14 witnesses testified at the instance of the
plaintiffs/respondents while 7 witnesses testified at the instance of the
defendants/ appellants herein.

After hearing the evidence and addresses of counsel, the learned trial
judge delivered, in my view, a well considered judgment in which he
considered all the submissions made by counsel and examined, assessed and
evaluated the evidence of acts of ownership led by the parties to ascertain
whether they were positive and numerous and spread over a sufficient length
of time to warrant the inference that the plaintiffs were exclusive owners.
His findings of fact in favour of the plaintiffs were very clear and read:

"(1) For the plaintiffs, I find established the following acts of ownership.


In 1894, they made a grant of the Ofiamwagbogho beach which is on
the west bank of Anambra River within the land in dispute to the
Roman Catholic Mission.

 

(2) On the defendants’ own admitted evidence, Chief Idigo, the King of
Aguleri moved to settle on a portion of the land in dispute with his
retinue as a King and members of his family in 1915. I do not believe
the defendants that Chief Idigo Aguleri settled on the land in dispute
with their permission.

…………………………………………………………………………
…....

 

(3) From 1924 onwards the plaintiffs made numerous open disposition of
parts of the disputed lands without opposition from the defendants. In
1924, they leased a plot to the Royal Niger Company. In 1926 and
1932 they leased plots to John Holt and to CFAO in 1931. All these
companies have abandoned their holdings and the present occupants
of the former business parties hold the premises as tenants of the
plaintiffs.

 

(4) Then there were the various grants of portions along the bank of
Anambra River to stranger elements comprising the Hausas, Yorubas,
Ijaws and Nupe
communities...........................................................................................

 

(5) In addition to those various acts of ownership plaintiffs live and farm
on portions of Otuocha land. Both their plan Exhibit E and
defendants’ plan Exhibit P show a heavy concentration of their
settlement north of the tarred road leading from Oye Agu Abagana to
the Otuocha waterside.

 

(6) There is the Umuaba Anam settlement on the land which took place in
1910
................................................................................................................

 

Similarly, he made very clear findings of fact on the question of acts of
ownership in favour of the defendants/appellants in the following terms:

 


"(1) For the defendants on the other hand, I find established as far back as
1898 they were on the west bank of Anambra River. Hurley, J. in the
1950 case found that they had two ferry stations on the left bank and
that they used these ferry stations for the purpose of going over to the
other bank of the river to farm there;

 

(2) In 1898 they made a grant of Otuocha land marked PINK in Exhibits
E and D to the Royal Niger Company of this grant to the Royal Niger
Company the Federal Supreme Court had this to say:

"1 am inclined to think that the Aguleris must have known of the 1898
grant by the appellants to the Royal Niger Company. The company
was active that year along theAftambra River
.......................................................

 

All they would have known would have been that the Umuleris made
a grant to the company but would have no reason to suppose it
extended beyond the land effectively occupied by the appellants
which at that date were these two ferry stations at one of which they
had a juju"

 

(3) This brings me to the rival claims by the parties of the Odakpa juju
situate on the land in dispute and shown by the Umuleri people in
their plans Exhibits D, O and P respectively. The defendants have
consistently claimed ownership of the juju in the 1950 case
...........................................................

Hubbard, F.J. observed that the antiquity of the juju was not
challenged by the Aguleri people in the court below but its ownership.
He found that it was the Umuleri people who own the juju
.....................................................

Before me the plaintiffs still claim that the Idakpa juju belongs to
them. I do not believe them. I am satisfied and find as a fact that the
juju belongs to the defendants.

 

(4) The defendants as was established in the 1950 case between 1910 and
1920 allowed the Church Missionary Society to build a Church near
Akor stream apparently without objection from the plaintiffs.

"In Omahene Kobina Foli v. Chief Obeng Akesse (supra) Lord
Thankertan delivering the judgment of the Privy Council, stated thus:

‘In questions of disputed ownership of land, occupation and
possession of portions of the disputed area is not relevant evidence of
title to the whole area unless it can be reasonably attributed to a right
to the whole area, the portions so occupied may be so numerous and
so closely adjoining that-they practically cover the whole
area..............................................................

 

Alternatively, the occupant of a portion may be reasonably attributed
to a right of ownership in a larger area, as, for instance, occupation of
a portion of a field.’

It is my view that no such considerations exist in the present case for
the purpose of raising the inference of ownership of the whole of
Otuocha land claimed by the plaintiffs."

On the issue of Estoppel by reason of the defendants having lost the 1950
case, the learned trial judge observed:

“I accept the submission of Chief Fani-Kayode that having lost their
claim in the 1950 case the defendants cannot be heard to say that the
land in dispute belongs to them. This, however, will be in respect of
the area of land marked pink in Exhibit C which was the subject
matter of the 1950 case. The area verged yellow beyond the pink
verge in my view is still at large.

I also accept the submission of Mr. Onyiuke that notwithstanding that
the defendants lost the 1950 case, they can strenuously dispute
plaintiffs’ claim of ownership of the land in dispute. Uzonwanne
Nwakuche v. Mathew Akweze & Ors. (supra) relied upon by the
plaintiffs would not apply to the facts of this case.

I have, in the above pages, examined and commented on the findings made
by the learned trial judge to show that the Federal Court of Appeal was very
much in error in holding that the judgment of the learned trial judge rested
mainly on the findings made in the 1950 case.

Since both parties were involved in the 1950 case with the defendants
claiming a declaration of title to the Pink area in Exhibits D and E, it was the


duty of the learned trial judge to examine the judgments in that case in close
detail so as to ascertain the findings made and the issues decided in that case.
It would have been of great value to the respondents, if despite the absence
of a counter. claim in the 1950 case the court had made a finding on the
evidence that the plaintiffs/respondents herein were the owners of the land in
dispute. However, that was not the case for the Privy Council observed:

"Their Lordships do, however, agree with the view to be collected
from Hubbard F.J.’s judgment as a whole that little, if any, assistance
is to be found in the various acts of ownership on either side which
took place between 25th June, 1898 and the abandonment of the land
by the Crown. "

In other words, the plaintiffs herein would not have succeeded if they had
counter

claimed for a declaration of title in 1950. It does not appear that any
evidence was

profferred in this instant case on appeal to improve the chances of the
plaintiffs and ensure their success in the claim for declaration of title and the
learned trial judge was perfectly justified in his findings that the plaintiffs’
claim fails and in making the order dismissing it.

 

A further reflection on the facts of this case reveals that the historical
development of this case dates back to 25th June, 1898. In that year, the
appellants conveyed the portion of land verged pink in the plans Exhibit D
and Exhibit E to the Royal Niger Company Chartered and Limited. It was a
grant made for valuable consideration. A certified true copy of the deed
headed Agreement for Purchase of Land - Exhibit ‘R’ was produced in
evidence. The title of the Royal Niger Company to the land was transferred
to the British Crown by the Niger Lands Transfer Ordinance of 1916 Cap
149 Laws of Nigeria. Pursuant to a provision of the Ordinance, the Crown in
1950 relinquished or abandoned its title to the land. Before then, in 1933 the
Umuleris by suit No.2 of 1933 in Onitsha had instituted an action against the
Aguleris claiming a declaration of title to the Pink area of the land in
dispute. This is clear from the judgment of Graham Paul, J. ‘Exhibit G’
which reads "it is also noted that both parties admit that the land in question
in this suit is precisely the same land as that covered by the Royal Niger
Company Agreement’. Graham Paul, J. went on to hold:


"In my opinion, the court below in giving the plaintiffs/respondents a
declaration of title failed to appreciate the real effect of the Agreement
of June, 1898. Whatever right or title the plaintiffs/respondents had in
that land was by the agreement sold to the Royal Niger Company and
being by that agreement completely divested of their rights or title to
the land the plaintiffs/respondents had nothing left to justify the court
giving them a declaration of title."

 

In 1935, the Umuleri people instituted an action suit No. 085/1935 against
the Aguleri people claiming a declaration of title to the land called Aguakor.
This is. outside the creek strip claimed in 1933. Waddington, J. entered a
judgment of nonsuit against the plaintiffs saying:

"1 find it impossible to hold that the plaintiffs have succeeded in
discharging that onus, and the declarations they seek must accordingly
be
refused…………………………………………………………………
…….. Much reliance is placed on the evidence of the defendant Idigo,
he has a competent knowledge of English and is a man of
considerable personality. However, I come to the conclusion after
seeing him in the witness-box that he is too deeply concerned for the
success of his side to be accepted with anything but caution. Nor do I
think the remainder of the evidence for the defendants established a
case in anyway more convincing than that of the plaintiffs. Had the
former claimed relief, they would have been in no better position to
have obtained it on their present case, than the latter.

One point should be mentioned on which I do believe Idigo, and that
is that for the past ten years farmers of both villages have used the
land, a situation, which is consistent with neither possessing exclusive
rights of ownership." (Underlining mine)

 

Part of Aguakor land is included in the land in dispute in this case. It is the
triangular portion verged green in Exhibit D. In November, 1950, the Crown
surrendered the creek strip and this set off this second series of litigation
with the Umuleris claiming a declaration of title in 1950 to that creek strip in
the Onitsha High Court - 0/48/50. They failed to obtain the declaration all
the way to the Privy Council. Their failure more or less encouraged the
Aguleris to institute the same claim for a declaration of title to the same
piece of land more in 1975 in Onitsha High Court 0/98/75. That is the action
now on appeal. .


 

The Agu]eris lost in the High Court but succeeded in obtaining the
declaration in the Federal Court of Appeal. As the 1950 case was fought on
the claims of each side to ownership of the Land, it appears to me that the
1975 exercise would hardly be expected to be fought on a different basis
save that the loud claim of the Umuleris to ownership of the creek strip
would be much subdued.

 

The trial of the 1950 case, suit 0/48/50 was by Hurley, J. He was unable to
reach any conclusion on the question of ownership from the evidence of
traditional history and decided to seek an answer to the question from the
evidence of acts of ownership. His judgment is in evidence as Exhibit A. In
his own words, quoting from Exhibit A, the learned Judge observed and
commented.

 

"It is impossible to find anything certain or even reasonably probable
from all this traditional legendary or purely fictional material about
geneology and origins; all that can be said is that the effect of it on the
whole is rather against the plaintiffs and in favour of the defendants.
Neither side has established anything definite from it and the plaintiffs
have failed to establish that the defendants are strangers to them and
to the left bank of the Anambra River, on which Otuocha stands. But
this does not put them out of court; it does not show that they do not
own the land or that the defendants do. On that issue, the parties are
back where they stood when the case was begun and the issue remains
to be decided on the rest of the evidence as if the particular questions
about the traditional origins had not been raised, for from the evidence
that has been produced on the question, I find it impossible to reach
any conclusions about them. That leaves me with the evidence
provided by acts of ownership consisting of dispositions of the land;
and with the evidence about the Odakpa juju which, as I find, the
plaintiffs now maintain on the land. The defendants have no juju on
the land and have never to have one until the present case in which the
1st defendant has said that the Odakpa juju is neither Umuleri's nor
communal, but belongs to an old man at Aguleri who has not given
evidence."

 

On the acts of ownership, the learned trial judge said:


"The evidence afforded by the dealings with the land by the parties
and by the existence on the land of a juju now tendered by the
plaintiffs, in my judgment, falls short of establishing the fact that the
plaintiffs are owners of the land."

 

The Umuleri people appealed to the Federal Supreme Court and lost. They
further appealed to the Privy Council. Although they lost, the view of their
Lordships of the acts of ownership was not in favour of the Aguleri people
for as Lord Jenkins, delivering the judgment of the Privy Council said:

"Their Lordships are content to accept as the more favourable to the
plaintiffs, Mr. Dingle Foot’s Submission that this was a case of
concurrent inferences from facts rather than concurrent findings of
fact. Even so they find it impossible to hold that the courts below were
wrong in concluding as they did that the plaintiffs, on whom the onus
lay, had failed to make out their claim to the declaration sought.

 

On the contrary, it. appears to their Lordships that such evidence of owner-
ship as existed immediately after the execution of the agreement of 25th
June, 1898, was wholly inconclusive either way, and that if and so far as
subsequent acts and events are to be regarded as having any evidential
value at all that do not on the balance, afford any further support for the
plaintiffs claim. As to the reliance placed by the plaintiffs to any physical
occupation by the Umuleri of parts of the disputed strip before 1898, their
Lordships would refer to Omanhene Foli v. Chief Obeng Akesse 1934 AC
340, which in circumstances such as those of the present case to say the
least, casts doubt on the evidential value of such partial occupation for the
purpose of raising the inference of ownership of the whole of the area
claimed. " (Underlining mine)

 

Earlier on, Lord Jenkins, said:

"Their Lordships do, however, agree with the view to be collecte4
from Hubbard, FJ.’s judgment as a whole that little, if any, assistance
is to be found in the various acts of ownership on either side which
took place between 25th June, 1898 and the abandonment of the land
by the Crown."

 

Stating clearly their reasons for this view, Lord Jenkins said:

 

The essence of the plaintiffs' case is that the Umuleris being then


owners of the land, made over the ownership of it to the company on
the 25th June,1898. They must therefore be taken as having believed
from the 25th June, 1898 onwards that they had no interest in the land,
and cannot rely on any acts of ownership on their part after the 25th
June, 1898 as assertions of their title against that the Aguleri.
According to their own case, such acts of ownership, at the time they
took place, could only constitute assertions of their title in the fast
instance against that of the Company and laterly against the crown.
Similarly, the acts of ownership from the 25th June, 1898 onwards
relied on by the Aguleris as assertions of their title against that of the
Umuleris could, according to the Umuleris’ case, only amount to
assertion of the Aguleris’ title against the company in the first
instance and latterly against that of the crown, which the Umuleris,
having parted with the whole of their interest, were neither concerned
nor able to contest.” (Underlining mine)

The Privy Council's decision was delivered on the 28th day of July 1959.
Rather than being deterred, the Aguleri people considered themselves well
armed by the decision for a fight. However, the Aguleri people considered
themselves well armed by the decision for a fight. However, the Aguleri
people did not rush to court immediately, they waited for about 16 years
before filing their claim in the instant appeal on the 12th day of June, 1975.

 

It appears to me that a careful reading and study of the judgment of the Privy
Council was not undertaken by the parties as this case was fought in the
High Court with almost the same material as the 1950 case, suit O/48/50.
The evidence differed only in minor details.

 

It was made abundantly clear in that Privy Council’s judgment, that,
between the years 1898 and 1950 any act of ownership by the Aguleris could
not be considered as a challenge to the titles of the Umuleris to the land in
dispute. Projecting the devolution of title to the land on the crown and
highlighting the true legal position, Lord Jenkins said:

"Their Lordships would next refer to the Niger Land Transfer
Ordinance 1916 (Ch 149 of the Laws of Nigeria). By section 2 of that
Ordinance, all the lands and rights within the southern provinces belonging
to the Niger Company on the 1st January, 1900 and specified or referred to in
the agreements and instruments mentioned in the First Schedule (which
included as No. 110 the agreement between Umutshezi and the Niger


Company) were vested as from the 1st January, 1900 in the Governor in
Trust for His Majesty, his heirs, and successors. In 1945, the Ordinance was
ammended by inserting a new section 10, by subsection (1) of which it was
provided in relation to any vested trust lands (i.e. any of the lands and
interest vested in the Governor in Trust as aforsaid) the Governor considered
it desirable so to do, he might by order published in the Gazette declare that
with effect from a date to be specified in such an order he abandoned all the
right, title or interest vested in him by virtue of the Ordinance in the whole
or any part of such vested trust lands as might be mentioned therein. By a
further amendment of the same date, a new section 14 was inserted in the
Ordinance stating in these terms the effect of any abandonment by the
Governor under section 10 (1)

 

'where the governor abandons all the right, title or interest vested in him
by virtue of this Ordinance in any vested trust lands or part thereof in
accordance with the provisions of this Ordinance then such abandonment
shall have effect as if such vested trust lands or part thereof had never been
included in the instrument, agreement or document, as the case may be by
which the same were originally transferred to the company’. .

By an order made under this Ordinance (No. 38 of 1950), and published in
the Nigerian Gazette of the 2nd November, 1950, the Crown abandoned all
right, title and interest in the land in dispute except for a small area edged
yellow on the plan Exhibit ‘P’.

On the strength of this abandonment by the Crown, which reinstated the
plaintiffs

as owners of the disputed strip if they had in truth been owners of it before
the execution of the agreement of 25th June, 1898, the plaintiffs on the 6th
November, 1950 commenced the present suit in the Native Court, from
which it was transferred to the Supreme Court. "

It is clear therefore that it was only from the 6th day of November, 1950
when the Umuleris were reinstated to the position they occupied before 25th
June, 1898 as owners of the land that any assertion of acts of ownership can
operate as a challenge to their title.

I am in sympathy with the concern of the learned Justices of the Court of
Appeal over the impression which .a dismissal of the plaintiffs’ claim for a
declaration of title would convey to the unlearned minds. Olatawura, JCA.
seemed to have given little thought to the matter when he held that such an


order would mean that the land in dispute is a no-man's land. I can find no
justification for that view. The learned trial judge’s findings that the parties
occupy different portions of the land in dispute – the Aguleris concentrated
in the north and the Umuleris concentrated in the south of the land in dispute
- do not, in my view, indicate that the land in dispute is a no-man's land.

 

A claim for a declaration of title does not succeed by the proof of the fact
that one party, the defendant, had lost in his bid for a declaration of title to
the same land before a court of competent jurisdiction. It has to be
established by credible, cogent and overwhelming evidence that the party
seeking the declaration of title has exercised complete unchallenged
dominion over the entire area of land claimed for a long time before the
court can be persuaded to exercise its discretion to grant the declaration. It
appears that Olatawura, lCA. overlooked the burden of proof to be
discharged by the Aguleri people and the fact that the learned trial judge did
come to a definite conclusion on the evidence, the attraction, use and
adoption of the language of Wadding J. in the 1935 case and of their
Lordships in the Privy Council in their judgments in the 1950 case,
notwithstanding. There is nothing incongruous about an order of dismissal of
a claim for a declaration of title if the burden of proof is not discharged. The
time hallowed principle of law on the standard of proof required to be
satisfied in such a case, i.e.. that the plaintiff must succeed on the strength of
his own case and not on the weakness of the defence,’ shows the necessity of
proof of the plaintiff’s case by evidence even in the absence of any
opposition to the claim by the defence. The burden is not made any lighter
where the evidence of traditional history of ownership is inconclusive,
scanty or non-existent or abandoned as in this case and as in this case where
there is abundant evidence of acts of ownership by either side dating back to
the closing years of the last century, i.e. 19th century. Exclusive ownership
of the entire area of the land in dispute by either party in such circumstances
is impossible to establish and it is little wonder that the appellants failed in
their bid in 1950. This is more so where the findings of fact is that each
party’s acts of ownership and possession do not derive authority from the
other party. Olatawura, JCA. was therefore in error when he held that there
was enough evidence on record to justify a finding in favour of the plaintiffs.
If, as established, the appellants have exercised acts of ownership over the
land in dispute since 1898 without let or hinderance from the respondents, it
is flying in the face of concrete and impregnable facts to infere and hold that
the respondents were exclusive owners of the entire area of the land in
dispute.


Belgore, JCA.’s observation, that the learned trial judge’s view that no act of
possession and ownership had been shown by the Aguleris to justify the
inference that they have title over the land was besed on previous decisions
that no definite conclusion could be drawn as, to who has title to Otuocha
land, is not justified by the findings made by the learned trial judge.
Admittedly, the issues decided in the previous action touching the land in
dispute cannot be overlooked. Their probative value is enormous and if the
judgments are in evidence as indeed they are, having been plaeaded and
tendered by both parties, their use is perfectly justified in law. Indeed, it
would be erroneous not to consider them and use them as issue estoppel or
estoppel per rem judicatam as the case may be.

Belgore, JCA. made another startling observation, which is not borne out by
the record. It is that ‘the learned trial judge never found any act of ownerhip
exercised by the defendants to rely upon except their recent settlement which
were sudden phenomenon on Exhibit ‘P’ in this case’. This amounts to a
grossly erroneous misdirection on the facts. I have set out earlier on in this
judgment the learned trial judge’s findings of acts of ownership and would
repeat with emphasis that they span a period of 86 years - 1898 till date. Of
the utmost significance is the grant they made of

 

AND

EZE A.E. IDIGO II & 5 ORS. - RESPONDENTS

 

JUDGMENT

(Delivered by Kauode Eso, J.S.C.)

 

I had the advantage of a preview of the judgment which has just been
delivered by my learned brother Obaseki J.S.C.

The issue as rightly put by my learned brother is one of fact as to proof of
ownership of the land in dispute.

 

Since the case of Ekpo v. Iha II N.L.R. 68 the onus for the proof of
ownership has always been on the plaintiff who has to prove acts.of
ownership positive and numerous enough and extending over a sufficient
period of time to warrant an inference that the plaintiff owns the land. This is
necessary once the traditional evidence in inconclusive.

 

The learned trial Judge made succint findings of fact and the Court of


Appeal must be wary .in disturbing these findings which are that neither the
Aguleris nor the Umuleris exclusively own the land in dispute. They are,
therefore, to live together in peace.

 

What is of importance, and I am influenced by this, is the fact that the parties
to this case did not make sufficient study of the Privy Council judgment of
28th July 1959 which made it clear that any act of ownership by the Aguleris
between 1898 and 1950 would not be a challenge to the title of the Umuleris.
It was also from 1950 that the acts of ownership could be of any legal
importance. My brother Obaseki has given prominence to this.

 

I agree with his reasoning and conclusion that the Court of Appeal has made
an unwarranted interference with the findings of the learned tiral Judge and I
will also allow the appeal and abide by all the orders made by my brother
Obaseki J.S.C.


 

 

IN THE SUPREME COURT OF NIGERIA HOLDEN AT LAGOS

ON FRIDAY, 1ST JUNE, 1984.

BEFORE THEIR LORDSHIPS


 

AYO GABRIEL IRIKEFE - JUSTICE, SUPREME COURT

MOHAMMED BELLO - JUSTICE, SUPREME COURT

ANDREWS OTUTU OBASEKI - JUSTICE, SUPREME
COURT

KAYODE ESO - JUSTICE, SUPREME COURT

AUGUSTINE NNAMANI - JUSTICE, SUPREME
COURT

 

SC.65/1982

GEORGE OKAFOR & 3 ORS. - APPELLANTS

EZE A.R. IDIGO III & 5 ORS. - RESPONDENTS

JUDGMENT

(Delivered by NNAMANI, J.S.C.)

I had a preview of the lead judgment just delivered by my learned brother,
Obaseki, J.S.C. I agree entirely with his reasoning and conclusions. I would

also allow the appeal.

The facts of this case appear to me to underscore the propositions of law that
where an action by a plaintiff for declaration of title to land is dismissed
neither the plaintiff nor his privy can in future take action against the same
defendant and in respect of the same land claiming the same relief. But
unless in the reasons for that judgment the Court. has adjudged the defendant
_wner of the land in dispute, in any subsequent action for declaration of title
to the same land this time by defendant, the plaintiff though estopped from
raising title to that land as a defence cannot be precluded from challenging
the title of the defendant. The onus of proof will fall bavily. on, the
defendant (now plaintiff) to establish that he is exclusive owner and he will
discharge that onus on the strength of his case and not on the weakness of
the other party's case. (See Kodilinye Vs Mbanefo Odu 2 W.A.C.A. 336, 337
and Nwakuche Vs Akueze & 3 Ors. (1962) Vol. VIE. N.L.R. 181,183.)

The history of the litigation between the parties in this appeal stretches back
over 60 years. There were suits between them in 1920, 1933; 1935, 1950 and
of course the present one which started in 1975. Although the 1933, 1935
and 1950 suits in which appellants were plaintiffs claiming declaration of
title to roughly the same land as that in dispute herein were dismissed, the
respondents were never adjudges owners of the land. In effect the Courts
held that the. acts of ownership were inconclusive on either side. Although
my learned brother Obaseki, J. S.C. has very exhaustively reviewed these
cases, I find the following words of Hurley, J. in the 1950 case quite
indicative of that position. He said:- .

"The result seems to be that neither side can convincingly say
that any of these transactions on their own part (except on
Aguleri's showing, the Umuoba Anam settlement) is
inconsistent with ownership of the land by the other side"

Learned counsel for the respondents strenously argued that his clients were
not relymg on the 1933, 1935 and 1950 decisions except perhaps just to
estop the appellants from raising their own title to the land in dispute.
Although I accept this it seems to me that from the way his client’s Pleadings
were settled there may have been lurking somewhere the belief that the
appellants having lost all these years; the logical conclusion was that title
resided in the respnndents. He contends that his clients hoped to succeed on
the strength of their acts of owuersbip and possession on the land in dispute.

It is clear that traditional history on both sides having been found
inconclusive and having in effect cancelled itself, the case had to be decided

on acts of ownership and possession. Umezinwa, J. made significant findings
in respect of acts of ownership possession on either side. He found that
Otuocha is occupied by the two communities each exercising acts of
ownership over the land or portions of it. While a heavy concentration of the
Aguleris can be found north of the tarred road leading from Oye Agu
Abagana to Otuocha waterside, the Umuleris heavily concentrated south of
that same road. The learned trial judge asked this crucial question -

"Can I from the acts of ownership which plaintiffs have
established reghtly draw the inference that the plaintiffs are the
exclusive owners of the land in dispute? It seems to me that in
determining whether plaintiffs are the exclusive owners of
Otuocha land, defendants’ established acts of ownership cannot
be ignored"

He then held that -

"The onus is now on the Aguleri people to prove acts of
ownership extending over a sufficient length of time, numerous
and positive enough to warrant the inference that they are
exclusive owners of the land in dispute -Ekpo Vs Ita XI N.L.R.
68"

Courts of law while trying to do justice between parties must decide cases in
accordance with well settled principles of law. On the facts of this case, and
the applicable law, I do not myself think that the respondents discharged the
onus which the law placed on them. As for the judgments of the Court of
Appeal, I ,shall merely be content with referring to the many decisions of
this Court as to the attitude. Appellate Courts ought to adopt to findings of
fact by the trial Court. See Woluchen Vs Gudi (1981) S.S.C.291 and Chief
Frank Ebba Vs Chief Warri Ogodo & Anor. S.C. 79/1982 delivered on
13th April, 1984). Indeed the respondents’ counsel did not appear to
quarrel with the primary findings of fact by the learned trial judge. His
contention was that from them the learned judge ought to have drawn the
inference that the respondents were exclusive owners.

Although I had expressed my agreement with my learned brother’s
judgment, I would. wish particularly to associate myself with his hope that
the Aguleris and Umuuleris, after 60 years of litigation which has largely
confirmed each community as owners of a Portion of the area in dispute,
would now seek a reapproachment and allow the spirit of communual


harmony and accommodation to daresay that that was probably present in
the mind of Umezinwa. J. when after dismissing the respondents’ claim in
the trial Court he said –

“May I however sound a note of warning to the defendants. In
dismissing the Plaintiffs’ case I have not decided that Otuocha
land belongs to the defendants. It is my view that neither side
can establish exclusive ownership of the.whole of Otuocha
land. If on leaving this court premises, no doubt jubilant, they
should go home to assert that Otuocha land belongs to them,
defendants and their leaders would take full responsibility for
any breaches of the peace that may occur. . . . . . . . . . . . .
…………………….. . . . . . . . . . . . . .

 

I abide by all the orders in the said judgment of my learned brother Obaseki.
J.S.C.

 

 

A. NNAMANI,

Justice, Supreme Court.

 

Chief F.R.A. Williams, S.A.N., with him

Chief G.C.M. Onyiuke, S.A.N.,

Professor U. U. Uche,

V.J. Okoye,

Mrs. Peter-Okoye,

H. Okechukwu,

for Appellants.


Mr. G.N.A. Okafor, with him,

Chief O.B. Onyali,

for Respondents.

 

Source: Culled directly from:
1.Nigeria law Reports 140; George Okafor & Others (Umuleri) Vs Eze A.E Idigo & Others (Aguleri) {1984} 1 SCNLR,481.

2.Nigeria Law reports, Okafor Egbuche & another (Umuleri) vs Chief Idigo & another (Aguleri) 1934 11.

THE TOWN PROFILES

Name:
Umueri(Mispronounced Umuleri)

Location:
Anambra East LGA of Anambra State.

His Royal Highness
(Traditional Ruler)
 


H.R.H Igwe Sir Ben Emeka
Igwe Okebo II of Umueri

His Majesty
(Traditional Prime Minister)


HRM Mike ekweonu
Onowu Iyasele  of Umueri

P.G Umueri General
Assembly (UGA)


Hon. Pius Okonkwo
(President General, U.G.A)

Title(Male):
Amanwulu,Ivejioku,
Oba,Asammuo
Ogbuevi,Ogbuanyinya

Title(Female):
Ekwe, Iyom,Nne-
Mmanwu,Okomme

Population:
Est. 155,000.00

Occupation:
Farmers,Fishers,trading
business,Crafts & Arts etc