3PLR- DAVID AGANA & 2 OTHERS V ALPHONSUS EZEOKE & 2 OTHERS

 

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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DAVID AGANA & 2 OTHERS

V

ALPHONSUS EZEOKE & 2 OTHERS

FEDERAL SUPREME COURT OF NIGERIA

FSC 27/1961

11TH JANUARY, 1962.

3PLR/1962/14  (FSC)

 

 

BEFORE THEIR LORDSHIPS

 

EDGAR IGNATIUS GODFREY UNSWORTH, F.J. (Presided)

JOHN IDOWU CONRAD TAYLOR, F.J. (Read the Judgment of the Court)

SIR VAHE BAIRAMIAN, F.J.

 

MAIN ISSUES

PRACTICE AND PROCEDURE – EVIDENCE – Res judicata – Applicability.

LAND LAW – Declaration of title – Proof of identity of land – Onus on the plaintiff.

PRACTICE AND PROCEDURE – EVIDENCE – Proof – Declaration of title to land – Proof of identity of the land – Onus on plaintiff.

 

REPRESENTATION:

1. E. Shyngle, (with him, M.O. Balonwu) -for the Appellants.

G.M.A. Okafor, (with him, A. I. Igun) -for the Respondents.

 

MAIN ISSUES

TAYLOR, F.J. (Delivering the Judgment of the Court): This is an appeal from the judgment of Betuel, J. of the Onitsha High Court, dismissing the plaintiffs’ claim for a declaration of title to land known as Am Ugilinze, and an injunction to restrain the defendants from interfering with the plaintiffs’ ownership and possession of the said land.

The appellants and the respondents are members of two of the four quarters in Amichi, the former coming from the Udene quarter and the lat­ter from the Okpala quarter. The Umueri family, the appellants, claim title to the land through their ancestor, whom they allege was the first settler on the land. The Obiagu family, the respondents, on the other hand, aver that the land in dispute was acquired by one Chief Umeorimili, according to na­tive law and custom; that it was originally and communal land which was later reclaimed by the Obiagu family, who planted araba trees on it. A suit in the Native Court No. 137/55 is pleaded by both contestants and will be dealt with a little later on in this judgment.

At the hearing of the appeal Mr. Balonwu, for the appellants, did not argue the grounds of appeal in the order or form contained in the Notice of Appeal, but dealt with the appeal in the following manner. He urged that there were two material issues tried by the High Court –

1. Whether the land in dispute originally belonged to the appel­lants’ family or whether it was a battle-ground, a res nullius.
2. If the answer to the first question was that it belonged to the ap­pellants’ family, then what portion of it was affected by res judicata as per suit 137/55.

 

He then argued that the burden of proving the first issue lay on the appel­lants and that if they succeeded they were entitled to judgment. In view of this he contended that the onus lay on the respondents to establish the sec­ond issue.

 

I look at the appellants’ claim in this way. Their contention is that the whole area edged pink on the plan exhibit ‘1’, and the area referred to therein as parcel ‘E’, or ‘red area’ in the Statement or Claim, was originally theirs; that the respondents obtained judgment against the appellants in re­spect of this parcel ‘E’, or ‘red area’; and that after this judgment they began to encroach further on the land in dispute. In this respect I refer to parag­raphs 10, 11 and 12 of the Statement of Claim, which read as follows:­

”10.   Many years ago, Newi people tried to encroach on the land in dis­pute from the west. In order to prevent this encroachment, the people of Amichi came to the aid of the plaintiffs’ people, and to­gether with the plaintiffs planted Araba sticks near this western boundary. The portion of the said land affected is shown edged red on the plaintiffs’ plan, hereinafter referred to as the ‘red area’.

11. In Mbanesi native court case No. 137 one Chief Umeorimili of the defendants’ family, sued Ikedionwu of the plaintiffs’ family, claiming declaration of title to the red area aforementioned, on the ground that it was he who planted the said Araba sticks, and obtained judgment.

 

12. Emboldened by this the defendants and members of their family began to make further encroachments on the land in dispute by making grants thereof to two persons without the prior know­ledge and consent of the plaintiffs. The plaintiffs and their people have frequently warned the defendants not to encroach on their land but to no purpose.”

 

The respondents’ answer to this averment, shortly put, is that the area in dispute was acquired by them when they reclaimed it by planting araba seeds on it and that Suit 137/55 is one of the three suits in which their title to the land has been declared by the courts. This is contained in paragraph 10 of the Statement of Defence. What the appellants therefore, have to establish, is that they are entitled to the area edged pink in exhibit ‘1’, which involves proof that this area was free from the 1955 dispute. As to the effect of the judgment in Suit 137/55 which was exhibit ‘2’ in the Court of trial, the learned trial Judge says that:­

 

“But as I interpret it, in Exhibit 2, the Defendants asserted suc­cessfully a claim to a declaration of title to a portion of land which did not consist merely of “Parcel E” but embraced the whole or a part of the land in dispute.

 

The Plaintiffs, it seems to me, have raised an issue which is either in part or in whole res judicata, and, even if it was merely in part res judicata, to have the whole issue ventilated again, includ­ing that part amounts to an abuse of the jurisdiction of this Court.”

If this interpretation of exhibit ‘2’ is correct, it would seem to me to be the end of the matter, unless the appellants are able to show, as was contended by Mr. Balonwu, that at the worst exhibit ‘2’ could not be interpreted against the appellants as affecting land to the south of the road running from Uga, where it crosses the land in dispute in a north-westerly direction, to where it meets up with the road running from Azuigbo, and then in a southerly direc­tion of Osumenyi. In which case learned Counsel has urged that a declara­tion of title should be granted to them of this smaller area.

Mr. Okafor, for the respondents, contended that certain references in Exhibit ‘2’ show clearly that the land in dispute there is the same as is in dis­pute in this appeal. He referred the court to the reference made to the land in dispute by the present first appellant, where he said:

“The land in question is Umueri land. The other name for this land is Agugilinze and Akabosi land . . . . . . . . . . . . . . In this Ago land the other families who got land near us are Ok­pokolo, Obiofie and Afoube.”

Okpokolo and Obiofie or Obohia are shown in the appellants’ plan, exhibit ‘1’, and when one reads that together with the claim in that suit, which reads as follows:

“Declaration of title to that piece of land situated at Agugilinze on the side of Azuigbo Road. The said land was shown to Ag­ricultural Department and you trespassed on it since 8th Feb­ruary, 1935.”

 

one is led to the inevitable conclusion that the area in dispute in exhibit ‘2’ is certainly not parcel ‘E’, but land on the eastern side of the Azuigbo road and within the area in dispute in this appeal. Now as to the extent of that area I am not clear, nor was the trial Judge in a position to say on the evidence on record. But this much one can say, that there are references made in that suit to the land of one Unachukwu, to the Ugili and Ogwugwu Juju, all of which are shown on the present appellants’ plan as being inside the area edged pink in exhibit ‘1’; and, in the case of the Ugili Juju or shrine, to the south of the Nnewi/Uga road and within the smaller area in respect of which appellants’ counsel sought in the alternative a declaration of title. Mr Okafor also made reference to the evidence of the first appellant in this appeal, where he says this:­

 

“Ikedilionwu was a juju priest of all the jujus on the land includ­ing the juju called Obi on the land in dispute in the 1935 case.

 

Ikedonwu claimed the Ana Umueri juju as being on the land in dispute in the 1935 case.”

 

Both of these jujus are well within the land in dispute and outside parcel ‘E’ and are shown on the east of the area edged pink in exhibit ‘1’. This witness states further that:­

 

“Land given to agricultural department was between Azuigbo road and Onachuku’s house; was not given by us.”

 

The area within these two points is also well within the area in dispute, and would seem to be correctly shown in the respondents’ plan, exhibit ‘4A’. In­deed, Mr. Shyngle, in his reply on behalf of the appellants, conceded that the Agricultural Department took a grant of 5 acres of land within the area in dispute, from the respondents.

 

The sum total of this is that, as the learned trial Judge said, exhibit ‘2’ dealt with either the whole of the area which is now in dispute, or a part of it, and in respect of that part the respondents have already obtained judgment; and that area, whatever its extent, cannot now be relitigated. The appellants have therefore failed to prove one of the main issues in a claim for declara­tion of title – i.e. a defined area to which they are entitled, and to which a judgment can be attached.

 

But that is not all. The appellants asserted in their Statement of Claim that they have let out portions of the land in dispute to tenants, but at the hearing they were unable to call one tenant in support of their assertion.

 

The respondents on the other hand, were able to establish the follow­ing:­

 

1. That they leased 5 acres of the land in dispute to the Agricultural Department.

 

2. That a portion of the area in dispute was granted by them to one Dr. Orizu.

 

3. That a member of the appellants’ family, the 2nd defendant’s wit­ness, Wilson Okoli, or his father, obtained a lease of a portion of the land in dispute from the respondents’ family in 1948.

 

4. That Jeremiah Nnakenyi, 5th defence witness, has a substantial house on the land in dispute and that he took a grant of the land from the respondents’ family.

 

5. That one Ezeanyaogu also lived on the land in dispute at one time, having obtained a grant from the respondents’ family. Throughout this appeal, and from the Record, the position seems to have been the same in the High Court: the appellants were able to point only to one act as establishing their alleged title to the land in dispute, and that was the placing of some jujus on the land, also the fact that the juju priest serving such jujus was appointed by the appellants. On the other hand the respondents contend that at any rate as far as Ago Ugilinze juju is con­cerned, it is a juju common to the surrounding towns. The learned trial Judge, summing up the case before him, says this:

 

“What have we?

 

On the Defendants’ side, the planting of Araba trees on some portion of the land in dispute, not merely on “Parcel E” res judicata nor merely in respect of “Parcel E” but in respect of some larger portion of the land in dispute, as acts of ownership, land leased to the Agricultural Department, and sold to Jeremiah Nnakenyi and Dr. Orizu.

 

On the plaintiffs’ side is alleged original ownership in particular the serving of the Agu-Ugilinze juju on the land and perhaps others.”

 

In my view, on the evidence led by the respondents, coupled with exhibit ‘2’, there was no other conclusion that could have been reached but a dismissal of the claim. I will therefore dismiss the appeal with costs which I would assess in favour of the respondents in the sum of thirty guineas.

 

UNSWORTH, F.J.:         I concur.

 

BAIRAMIAN, F.J.:         I concur.

 

Appeal Dismissed.