In The Court of Appeal of Nigeria

On Thursday, the 11th day of July, 2002



Before Their Lordships

JAMES OGENYI OGEBEJustice of The Court of Appeal of Nigeria

MICHEAL EYARUOMA AKPIROROHJustice of The Court of Appeal of Nigeria

ABOYI JOHN IKONGBEHJustice of The Court of Appeal of Nigeria



    3. CELESTINE DIKE (For themselves and as representing members of the Umuomekara of the and Uchegbu families of Umuogbujiaga Etioha, Ohaji)Appellant(s)




    4. ONYEKWERE NJOKURespondent(s)

ABOYI JOHN IKONGBEH, J.C.A. (Delivering the Leading Judgment): This is an appeal by the plaintiffs, representing two families. They had sued the defendants in the Imo High Court, sitting at Oguta, claiming a declaration of title to land, damages for trespass and injunction. Their case was the land in dispute had been deforested by the ancestor of the two families. After the deforestation the founders started exercising full acts of ownership and possession, like farming thereon and letting parts of it to rent-paying tenants. One of their tenants was the Imo State Agricultural Development Authority (or Corporation), i.e. A.D.A or A.D.C. This particular tenant did not keep to the terms of the grant to it, so the plaintiffs threw it out. It was soon after this that sometimes in 1984 the 1st defendant trespassed into the land. The 2nd plaintiff testified as Pw1. The plaintiff called four other witnesses.

The defendants’ case was that the land in dispute was communal land. It had been deforested by a stranger, who had been allowed by the community to do so in order to keep dangerous animals at bay and to provide more farmland. He was on part of the land as a tenant, as were other people, including the A.D.C. At one point in time the plaintiffs laid claim to the land and the matter was taken before the amala, who declared in favour of the community. It was the community that put the 1st defendant on land as a tenant. The defendants called four other witnesses, including boundaries men and the head of the community.

After hearing addresses by counsel, the learned Judge, F.I.E. Ukattah, J.., as he then was delivered judgment on 18/12/87, dismissing the plaintiffs’ claims.

Aggrieved they have appealed to this court. Chief K. K. Ogba formulated two issues in appellants’ brief of argument.

At the hearing of the appeal, however, Mr. M. U. Ogumike, who argued the appeal before us, abandoned the second issue, which was accordingly struck out. The only issue left was-
“Whether the learned trial Judge properly evaluated the evidence of the parties on the ownership and possession of the land dispute:

Prince E. T. Nsofor formulated the following sole issue on behalf the respondents:

“Whether the Plaintiffs proved their case and so entitled to the judgment of the court in terms of heir claim.”

Learned counsel for the appellants commenced the argument of the appeal on their behalf by pointing out what they had pleaded and, according to him, proved in evidence. Counsel then complained that –
“But in spite of the unassailable evidence that the plaintiffs had a family juju called Nnanmiri Ogbede, many tenants on the land, and that the plaintiff called four tenant to testify for them that two of these tenants, PW2 (Stepen Okereafor PW2 (Vitalis Igbo) and PW5 (Paul Asiegbu) had been tenants, the plaintiff’s tenant long before the cause of action arose, the learned trial Judge ignored all this overwhelming evidence of facts within living memory in favour of the plaintiff and decided that the land in dispute belongs to the defendant solely because he believed the evidence of the defendant and disbelieved that of the plaintiffs.”

In counsel’s view, there was no basis for the Judge’s belief in the evidence proffered by the defendants/respondents in preference for that by the plaintiff/appellants, especially as the latter was not challenged by the defendants/respondents. Counsel drew attention to two areas where he thought there were contradictions in the case of the defendants. The Judge should not, counsel said have rejected the evidence of the plaintiffs’ tenants. Finally, learned counsel criticized the Judge for not making a specific finding on the existence of a juju shrine on the land as pleaded by the defendants.
With respect to learned counsel, I do not think that the complaint that the Judge did not evaluate the evidence before him can be supported. Apart from stating the respective cases of the parties, the Judge did a review of the testimony of all the witness. Then, at pages 68-69 and 70-71 he expressed his views thus.

“The defendant called two boundary witnesses, DW1, Chief Boniface Oloko of Umukene and D.W.5 Nwanadi Agugua of Etioha, The plan of the plaintiff exhibit ‘A’ shows that the land in dispute has boundary with the land of Umukene, Neamadi Agugua and others but they called none of the boundary man. The DW2 told the court that he is a native of Umunkene and that he owns a piece of land which has common boundary with the land in dispute. He said there was a time there was a boundary dispute between him and the people of Enoka over the boundary between his own boundary the land in dispute and that it was settled amicably between him and Etioha people. The Dw.5 did not only give evidence of boundary. He is a native of Etioha and the head of Etioha community. He confirmed in material particular the evidence of DW1 relating to ownership and possession of the land in dispute. The DW3 Chief Paul testified that ownership of the land in dispute between the plaintiff and Etioha people over the ownership of the land in dispute and that they found for the people of Etioha. The plaintiff said nothing in their evidence and pleading about the said arbitration. The DW4, Obed Ofoukwu, testified that he is a tenant on the land in dispute by the permission of Etioha community. He mentioned the names of the other such tenants.
I have examined in exhibit ‘A’ and ‘B’. The land shown in exhibit ‘B’ is larger than the area shown in exhibit ‘A’ and the land shown in exhibit ‘A’ is contained in exhibit ‘B’.

The plaintiffs call the land they claim “Okohia Mmiri” but the defendant call the land shown in their plan, exihibit ‘B’ “Uzommiri Ukwu Etioha.” The DW1 and Dw2 testified that “uzomiri Ukwu Etioha” is a vast area of land and Dw1 stated that it is made up of “Okohia Mairi” and Okwu Adida.” It is therefore, clear that the land the plaintiffs claim is contained within the area of land claimed by the defendant as belonging to the whole Etioha community. The area verged pink in Exhibit ‘A’ alleged to have been surveyed by the 1st defendant (DW1) is the same as the area verged blue in exhibit ‘B’ said and to have been granted by the Etioha community to the 1st defendant Nwoke. The DW1 and Dw5 gave evidence of said grant. The DW5… of the Etioha community.

In a land case a plaintiff succeeds on the strength of his own case and not on the weakness of the defendants’ case. See Coblah vs Gbeke, 12 WACA 294. In P. Prempong vs. Brempong, 14 WACA 13. It was held that where the plaintiff’s evidence in a land case is story judgment should be for the defendant. This does not mean that the land should be awarded to a defendant who did not counter-claim but it simply means that the plaintiff’s action should be discussed.
In this case the plaintiffs’ evidence that the land in dispute is owned and possessed by their families is not supported by the evidence of any person outside these families, say any other Etioha person. They called no boundary witness and the DW2 who comes from Umukene – a town shown in Exhibit ‘A’ to own land adjoining the land in dispute – and DW5 shown in exhibit ‘A’ to own land adjoining to the land in dispute testified ‘that the land in dispute belongs to Etioha community. The Dw1 and Dw5 testified that Etioha community granted the portion of and verged pink in exhibit ‘A’ and blue in exhibit ‘B’ to the DW1 and rented the palm trees on the whole land to the Dw1, on annual basis. It appears that the plaintiffs seduced to their side the PW2-Pw5, tenants on the land who had been placed there by the community.”

It can be seen that the Judge gave his reasons for preferring the evidence called by the defendants to that called by the plaintiffs. He took into account the fact that the plaintiffs failed to call any of the boundaries men that they pleaded, whereas the defendants called some of them. He also took note of the fact that the defendants produced unchallenged evidence that the issue of the ownership of the land had previously been settled by the amala in their favour against the plaintiffs.
In view of all this, I do not think it is fair to say that the Judge did not properly evaluate the evidence. I see no merit in the appeal and I accordingly dismiss it with N5, 000.00 costs to the respondents.

JAMES OGENYI OGEBE, J.C.A.: I read before now the lead judgment of my learned brother Ikongbeh, JCA just delivered and I agree entirely with his reasoning and conclusion.
This is one the oldest appeals in this Division of the Court of Appeal. The appellant delayed its hearing by bring so many motions to file additional ground happily the appeal is over. The appeal is totally lacking in merit and I too dismiss it and affirm the judgment of the trial court. I abide by the costs made in the lead judgment.

MICHEAL EYARUOMA AKPIROROH, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother IKONGBEH, JCA. I agree with his reasoning and conclusion.
I find no merit in the appeal and I too dismiss it with N5, 000.00 costs to the respondents against the appellant.



  1. U. Ogumike. Esq.,For Appellant



E.O. Onyema, Esq.,For Respondent


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