UGWU & ORS v. EKETE & ORS
(2021)LCN/15753(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Friday, April 23, 2021
CA/E/884/2018
Before Our Lordships:
Ahmad Olarewaju Belgore Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Between
1. HRH (DR.) IGWE EMMANUEL UGWU 2. CHIEF CHRISTIAN MBA 3. CHIEF JOSEPH MBA 4. CHIEF NICHODEMUS ANIKE 5. CHIEF CHRISTOPHER UGWU 6. CHIEF NATHANIEL EKE (For Themselves And On Behalf Of Ibeagwa Community) APPELANT(S)
And
1. HRH IGWE DENNIS EKETE 2. NOME JOSIAH NNAMANI 3. MR. LAZARUS OGBU (JP) 4. CHIEF ROMANUS UGWU (For Themselves And On Behalf Of Ogbeke Nike Community) – 1ST SET OF RESPONDENTS AND 1. MR. JUDE OKOYE 2. HYGINUS TOCHUKWU NGWU 3. MR. MBA UGOCHUKWU 4. ENGR. MBAEKE HENRY FRIDAY 5. MR. SUNDAY ALUM 6. MR. PAUL CHIEMERIE NGWU 7. MR. MBA CHIEDOZIE (For Themselves And On Behalf Of Members Of Greater Ibeagwa Aneke Ode Youths Of Ibeagwa Autonomous Community) – 2ND SET OF RESPONDENTS RESPONDENT(S)
RATIO
THE REQUIREMENT OF THE LAW WHERE A PARTY SEEKS FORFEITURE OF COMMUNAL LAND
One who seeks forfeiture of communal land, must establish the existence of the grant, and the terms and conditions thereof. See the case of Laarokun & Ors Vs Kadir (2019) LPELR – 47715 (CA); Okpala & Ors Vs Okpu & Ors (2003) LPELR – 2513 (SC).
In the case of Omah Vs Omah (1989) 1 NWLR (Pt.99) 514, it was held:
“It is well settled that forfeiture is the usual mode of determining a customary tenancy. The real basis of misconduct or misbehavior which renders the tenancy liable to forfeiture is the challenge to the title of the overlord. This maybe by alienation of part of the land, under claim of ownership, refusal to pay tribute due or, indeed, direct denial of the overlords title by setting up a rival title in the customary tenant himself…”
See also Akinlagun & Ors Vs Oshoboja & Anor (2006) LPELR- 348 (SC); Eyigebe Vs Iyaji (2013) LPELR-20522 SC.
In the case of Solabi & Ors Vs Ojugbele & Ors (2019) LPELR – 48377 (CA), this Court said:
“…a party who alleges another to be a customary tenant must plead the incidence of customary tenancy. See Dim Vs Ewemou (2009) 10 NWLR (Pt.1149), Kano Vs Maikaji (2011) 17 NWLR (Pt. 1275) 139… It is settled law, that under native law and custom to prove Ishakole (tribute), the Plaintiff must adduce clear evidence on thing or things paid, the payee or receiver, the time when it is paid and other circumstances surrounding it. Bare assertion of payment or that a person is a customary tenant, is insufficient. See Are Vs Ipaye (1990) 21 NSCC (Pt 1) 426.
Also in Dashi Vs Satlong (2009) 5 NWLR (Pt 1134) 281 at 295 – 298, it was held by Tabai, JSC, thus:
“Unless it is otherwise excluded, the main feature of a customary tenancy is the payment of tributes by the customary tenant to the overlord…’’ See also the case of Mitini Nyauwaro & Ors Vs Babiya Ogegede (1971) NSCC 206 at 211.” PER MBABA, J.C.A.
THE POSITION OF LAW ON WHEN A PRELIMINARY OBJECTION CAN BE FILED
A preliminary objection can only lie, where the Respondent is attacking the competence of the appeal, as a whole. See the case of Okereke & Anor Vs Adiele (2014) LPELR – 24103 CA; Alaribe Vs Okwuonu (2015) LPELR – 24297 CA; Ekweogu & Ors Vs Anyama & Ors (2020) LPELR – 49292 (CA); Nwaolisah Vs Nwabufoh (2011) LPELR – 2115 (SC); Umanah Vs NDIC (2016) LPELR – 42556 (SC). PER MBABA, J.C.A.
CIVIL ACTIONS THAT CANNOT BE BROUGHT AFTER THE EXPIRATION OF SIX YEARS
Sections 20(1) (a) and 22(2) of the Action Law of Enugu State, state:
20(1) (a):
“The following action shall not be brought after the expiration of six years, that is to say: (a) actions founded on simple contract or tort”
22(2):
“No action shall be brought by any other person to recover any land after the expiration twenty years from the date on which the right of action accrued to him or if accrued to some persons through whom he claims, to that person:
Provided that, if the right of action first accrued to the State, the action may be brought at any time before the expiration of the period during which the action could have been brought by the State, or of twelve years from the date of which the right of action accrued to some person, other than the State, whichever period first expires.”
We have stated the law repeatedly that the issue of limitation to sue to recover land does not apply in a situation of continuing trespass on land, in respect of land holding under customary law. See Okanu Vs Anoruigwe & Anor (2019) LPELR – 48835 (CA); Obueke Vs Nnamchi (2012) 12 NWLR (Pt.1314) 377. Thus, issue of statutory limitation or limitation of time to bring the suit, appears not to be directly relevant to this Appeal.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Enugu State High Court in Suit No. E/131/2012, delivered on 7th November, 2018, by Hon. Justice A.R. Ozoemena, whereof the learned trial Judge dismissed the claims of the Plaintiffs (now Appellants) and granted the claims of 1st set and 2nd set of Defendants, as per their counter-claims, respectively.
At the trial Court, Appellants, as Plaintiffs, had sought the following reliefs:
(a) A declaration of title in favour of the Plaintiffs over the parcels of lands on the right side of the road leading to Ugwogo Nike, starting from Ngene Oyi river to Iyiukwu river, which includes: Enu Ekpe land, Ariuno land, Akpalata 1, Idime/Agu Offia Land, Onuiyikwu land, Offia Iyikwu land, Toto land, Akpalata lji, Akpalata lji/Onyeachonam Farm land and Owele Idume land, bounded by Edem Nike land, not in dispute; lands on the left hand side of the road, which includes Ogboekwu/Four Cornerland, Njesike land, Mkpu Aziza land, Iyimgbu lands, Uzam land, Ogba Akpaka land, Obala Iyikwu land, Offia Iyikwu/Onu Iyikwu land, Kpakpand/Ahaba land, Ishi Isu land and Offia Ani Achara land and Ugwu Ofe land, verged with purple line, granted to Ogbeke by the first set of Plaintiffs’ community, for settlement/farming purpose and all that parcel of lands as formerly called and scheduled in the 1963 declaration of Ibeagwa Nike leaders of thoughts.
(b) Damages of N100,000,000 (One Hundred Million Naira) against the Defendants for trespass.
(c) An Order of perpetual injunction restraining the Defendants, their agents, servants and privies from committing any further trespass on the parcels of land in dispute.
(d) An Order of forfeiture against the Defendants from the original place granted to them by Ibagwa Nike Community, known as UGWU OFE LAND, for challenging the title of their over lords, and dealings in the lands in a manner inconsistent with terms of customary tenancy, and to the annoyance and deprivation of the Plaintiff’s.”
(See the Amended Statement of Claim on Pages 991 to 1007 of the Records of Appeal wherein the Plaintiffs divided the Defendants into 1st and 2nd sets. The said pleading was Further Amended by Appellants, but the reliefs remained the same). The 1st set of Defendants filed further further amended statement of defence, and raised a counter-claims, seeking the following reliefs:
(a) A declaration that Ogbeke Nome stream is the boundary and forms the natural boundary between Ogbeke Nike Autonomous Community and Ibeagwa Nike Autonomous Community.
(b) A declaration of the statutory/customary right of occupancy over the parcels of land described and shown in Plan No. SK/006D/2014 as constituting Ogbeke land.
(c) A declaration that Ogbeke is bounded by Ugwugo Nike, Umulugbe, Okpatu, Obinagu Amangwu, Ibeagwu, Ugwuomu and Akor Communities.
(d) A declaration that Iyi-Ukwu River is the boundary between Ogbeke and Ugwogo in the North and North-West with Umulumgbe crossing Abiyi River, in the West by Okpatu at Ugwuikwe and South-West with Obinagu Amangwu formerly Amokpo Nike, in the South by Ibeagwu Nike across Ogbeke Nome (Ngene Oyi) in the South-East by Ugwuomu and North-East by Eko Nike at Iyi-Ukwu River.
(e) An order of perpetual injunction restraining the Plaintiffs, their agents, privies, attorneys or howsoever described from trespassing on the land of Ogbeke situate between Ogbeke Nome Stream and Iyi-Ukwu River.
(f) N500,000,000.00 (Five Hundred Million Naira) only as general damages.” (See Pages 1784 to 1808 of the Records)
The 2nd set of Defendants too filed their defence and a counter-claim, claiming as follows:
(a) A declaration that the 2nd set of the Defendants are bona fide purchasers for value without notice of the Plaintiff’s claim/interest over the 500 plots of land, purchased from the 1st set of Defendants, without notice.
(b) A declaration that the 2nd set of Defendants are entitled to the customary right of occupancy of the 500 plots of land, verged yellow, in the 1st set of Defendants dispute survey plan, which plots were purchased by the 2nd set of Defendants from the 1st set of Defendants as bona fide purchasers, for value without notice of the Plaintiffs’ claim/interest over the 500 plots of land, purchased from the 1st set of Defendants.
(c) A perpetual injunction restraining the Plaintiff’s, their agents, privies attorneys, any person or persons working for or under them, from trespassing on the 2nd set of Defendants’ 500 plots of land, verged yellow as in the 1st set of Defendants’ dispute survey plan, either by farming, erecting of building, leasing or in any other manner, whatsoever.
(d) 10,000,000 (Ten Million Naira) only as damages.” See Pages 2186 to 2189 of the records (but Pages 2185 to 2186 were missing from the Records of Appeal).
The Appellants (as Plaintiffs) had filed replies to the statements of defence and defence to the counter-claims.
At the end of hearing the case and considering the evidence and addresses of counsel, the learned trial Judge held against the Appellants, but the Defendants, as follows:
“… since the Plaintiffs have not established that the 2nd set of Defendants, who are even from the Plaintiffs’ community, did not purchase the property in good faith, it is deemed that they have admitted that the 2nd set of Defendants purchased the property in good faith and for a valuable consideration and therefore entitled to a good title of the plots they bought in good faith and for valuable consideration. Therefore the principles of nemo dat quod non habet and the cases therein cited by the Plaintiffs cannot apply in the instant case…
At the close of their various case (sic) by the parties in this suit, it is observed that the Plaintiffs tendered about 33 Exhibits. 1st set of Defendants tendered 30 Exhibits while the 2nd set of Defendants tendered two Exhibits. Exhibit A tendered by the Plaintiffs is a sketch plan of 1934 in the land case between Amakpo Nike Vs Okpatu. The Exhibits show that as far back as 1934 at the far end of the Plan, Ogbeke Nome Stream was captured as boundary between Ibagwa and (sic) the South, and Ogbeke at the North of the Nome Stream as in the Plan…
Exhibit Z11 is Suit No. E/496/2012. This is an evidence of one Engr. Stephen Nnaji in the aforementioned suit, from Ibagwa, saying that Ogbeke Nome is the boundary between Ibagwa and Ogbeke Communities as captured in his statement of oath in that suit. The exhibit is pleaded in paragraph 4 of the 1st set of Defendants’ further further amended statement of Defence…
Exhibit Z13 – Report Igwe Ezeogo Committee. This committee report clearly shows that Ogbeke Nome is boundary between Ogbeke and Ibagwa and this is contained in paragraph 12 of the 1st set of Defendants’ further further amended statement of defence.
Exhibit Z14 – this is the evidence of Friday Atama in Suit No. E/51/86, as a native of Ihunwazekwe and Ajame of Ibagwa, stating that the people of Ibagwa are later comers and that strangers of Ibagwa are not Chief Priest; that Ogbeke Nome is the boundary between Ibagwa and Ogbeke. This was pleaded in paragraphs 10 and 11 of the 1st set of Defendants’ further further amended statement of defence.
Exhibit Z15 – Grant of Autonomous (sic) in 1999 to Ogbeke. Ordinarily, the entire Nike was one community under Edward Nnaji. At a later date, several communities started getting autonomy from the government.
In 1999 Government granted Ogbeke Autonomous status even before Ibagwa, and this fact is contained in paragraph 30 of the 1st set of Defendants’ further Further amended statement of defence.
It is my view that Enugu State Government that granted autonomy to Ogbeke, and subsequently to Ibagwa ought to have made clear, the geographical areas that make up Ogbeke and Ibagwa Communities. Note “that in an action which seeks the determination of boundaries between the parties to the dispute, it is for the Plaintiffs to identify and prove the existing boundaries and, where none is identified and proved, the Court has no power to demarcate one.” If the land and the boundaries cannot be properly ascertained, the Plaintiff claim must fail. See Amata Vs Modekwe (1954) 14 WACA 580, Akubueze Vs Nwakuche (1959) SCNLR 616.
I must say, however, that in view of the witness of Exhibit Z14 (Friday Atama) in Suit No. E/51/86, that Ogbeke Nome is the boundary between Ibagwa and Ogbeke; Exhibit Z13 (Report of Igwe Ezeogo Committee). The committee report clearly shows that the Ogbeke Nome is the boundary between Ogbeke and Ibagwa as contained in Paragraph 12 of the 1st set of the Defendants’ further further amended statement of defence.”
Exhibit Z11 – Suit No. E/496/2012… is an evidence of one Engr. Stephen Nnaji in the Suit from Ibagwa, saying that Ogbeke Nome is the boundary between Ibagwa and Ogbeke Communities… From the foregoing, Nome River (sic) should be regarded as the natural boundary between Ibagwa and Ogbeke Communities… (Pages 3745 – 3749 of the Records).
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The Judge Further held:
“Exhibit Z16 – Enugu State Official Gazette of 5/9/2002 – This is re-affirmation of Gazette of Autonomy of Ogbeke Nike.
Exhibit Z17 – Recognition of Igwe Dennis Ekete – The Traditional Ruler of Ogbeke.
Exhibit Z18 – Certificate of recognition of Igwe Dennis Ekete the Traditional Ruler of Ogbeke.
Exhibit Z19 – captured the 1st defendant’s distinct community/quarters from Ibagwa…
It should be recalled that the Plaintiffs had asked, in paragraph 14(d) for forfeiture against the defendants. It is no longer possible to grant this prayer, Ogbeke having been given an autonomy and Gazetted. No Court, including this Court will grant that prayer – the question is where do they go from here – into the thin air?… It is not possible to vacate an entire community.
Exhibit Z20 – Irrevocable Power of Attorney. This exhibit had been captured as Exhibit Z6 above, where Igwe Emma Ugwu signed a document that the land belongs to Ogbeke (though he denies it) and the 2nd set of Defendants bought 500 Plots, without any notice of the interest/claim of the Plaintiffs on the land.
I have said earlier that I did not believe that Igwe Emma Ugwu did not sign that document… (Pages 3749 – 3750 of the Records).
On Pages 3754 – 3755, the trial Court held, finally:
“In the circumstances of the above, the judgment of the Court is that the Plaintiffs have failed to satisfy the Court and are not entitled to their claims. Based on the following:
(1) Inability of the Plaintiffs to identify the real precise extent of the land they are claiming.
(2) Inability to prove their ownership of the land in dispute.
(3) Documents tendered by the parties.
(4) Unsatisfactory nature of the history and traditional evidence of who first settled in the land among the parties. And other points raised above and discussed in this judgment.
Instead, the counter-claim of the 1st set of Defendants in their further further amended statement of defence/counter-claim… succeeds and therefore I make the following declarations in their favour:
(a) A declaration that Ogbeke Nome stream is the boundary and forms the natural boundary between Ogbeke Nike autonomous community and Ibeagwa Nike autonomous community.
(b) A declaration of the statutory/customary right of occupancy over the parcels of land described and shown in Plan No. SK/006D/2014 as constituting Ogbeke land.
(c) A declaration that Ogbeke is bounded by Ugwugo Nike, Umulugbe, Okpatu, Obinagu Amangwu, Ibeagwu, Ugwuomu and Akor communities.
(d) A declaration that Iyi-Ukwu River is the boundary between Ogbeke and Ugwogo in the North and North-West with Umulumgbe crossing Abiyi River, in the West by Okpatu at Ugwuikwe and South-West with Obinagu Amangwu formerly Amokpo Nike, in the South by Ibeagwu Nike across Ogbeke Nome (Ngene Oyi) in the South-East by Ugwuomu and North-East by Eko Nike at Iyi-Ukwu River.
(e) An order of perpetual injunction restraining the Plaintiffs, their agents, privies, attorneys or howsoever described from trespassing on the land of Ogbeke situate between Ogbeke Nome Stream and Iyi-Ukwu River.
(f) N100,000.00 (One Hundred Thousand Naira) only as general damages.” (See Pages 1784 to 1808 of the Records)
The 2nd set of Defendants in their statement of defence/counter-claim are entitled for:
(a) A declaration that the 2nd set of the Defendants are bona fide purchasers for value without notice of the Plaintiff’s claim/interest over the 500 plots of land… verged yellow, in the 1st Set of Defendants dispute Survey Plan, which plots were purchased by the 2nd set of Defendants from the 1st set of Defendants as bona fide purchasers, for value without notice of the Plaintiffs’ claim/interest over the 500 plots of land, purchased from the 1st Set of Defendants.
(b) A perpetual injunction restraining the Plaintiff’s, their agents, privies attorneys, any person or persons working for or under them, from trespassing on the 2nd set of Defendants’ 500 plots of land, verged yellow as in the 1st set of Defendants’ dispute Survey Plan, either by farming, erecting of building, leasing or in any other manner, whatsoever.
(c) 100,000 (One Hundred Naira) only as damages.” (See Pages 3745 to 3755 of the records of appeal).
That is the decision Appellants appealed against, feeling dissatisfied, as per their notice and grounds of appeal, filed on 9/11/2018 (Pages 3756 – 3778 of the records of appeal), disclosing Twenty Two (22) grounds of appeal. Appellants filed their further amended brief of arguments on 27/11/2020, and distilled twelve (12) issues for the determination of the appeal, as follows:
(1) Considering the contradictions in the 1st set of Respondents’ pleadings and traditional evidence, whether the Appellants did not sufficiently prove their traditional history to entitle them to a declaration of title to the land in dispute (Grounds 1, 2 & 3).
(2) Whether the Appellants are not entitled to judgment considering the long acts of ownership and possession supported by documents and facts of recent history. (Grounds 4 and 17).
(3) Whether the learned trial Judge could unilaterally go into facts finding and base his decision on his personal observations at the locus in quo, which is not part of the parties case, as against the evidence on records. (Ground 5)
(4) Whether the Appellants did not prove the identity of the land in dispute. (Grounds 9 and 11)
(5) Whether the learned trial Judge was right in law to declare title in favor of the Respondents/counter-claimants, who ought to prove the identity of the land for which they seek (sic) declaration of title. (Ground 10)
(6) Whether Exhibit Z6, a power of attorney allegedly witnessed by 1st Appellant, was admissible and/or tantamount to admission against Appellants interest, especially as it was made during the pendency of the suit, is manifestly ex-facie unreliable and did not refer to any of the lands in dispute.(Grounds 12 and 13)
(7) Whether the trial Court was not in error in not giving effect to the decision of the Nike council of elders/Igwe Edward Nnaji (Exhibit T) and instead applying Exhibit Z23 – the Report by Igwe Ezeogo of Ugwuogo of the decision of the Council made 26 years, subsequently. (Grounds 14 and 16)
(8) Between the Appellants and the Respondents, who succeeded in proving his case to be entitled to declaration of title (Grounds 18,19 and 24)
(9) Whether the Appellants’ claim of forfeiture against 1st set of Respondents was rightly rejected by the trial Court. (Grounds 6, 7 and 8)
(10) Whether, considering the facts and circumstances of this case, the 2nd set of Respondents are bonafide purchasers for value, without notice. (Ground 20)
(11) Whether the suit of the Appellants was statute barred (Grounds 21 and 22).
(12) Whether the learned trial Judge was not in error when he held that Ogbeke has boundary, inter alia, with Umulumgbe Okpatu and Ugwuomu (Ground 23)
The 1st set of Respondents filed Notice of Preliminary Objection against some grounds of the appeal, praying they be struck out. They filed their amended brief of arguments on 1/2/2021, and distilled 10 issues for the determination of the appeal as follows:
(1) Whether the evidence of traditional history as led by the 1st set of Respondents is more credible and probable and therefore ought to be upheld over the contradictory evidence of traditional history led by the Appellants. (Grounds 1, 2 and 3).
(2) Whether the learned trial Judge rightly applied and relied on the principle in Kojo Vs Bonsie (1957) 1 WLR 122 to decide that by long acts of possession, possession of documents of title and recent acts in present time, the 1st set of Respondents, as against the Appellants are entitled to a declaration of title in their favour. (Grounds 4 and 17)
(3) Whether the learned trial Judge applied the observations and evidence gathered at locus standi in deciding the rights of the parties. (Ground 5)
(4) Whether the Appellants sufficiently proved the identity features, location and extent of the land in dispute. (Grounds 9 and 11)
(5) Whether the 1st set of Respondents proved the identity of the land and their boundary neighbors and thus were entitled to a declaration of title and boundary in respect thereof. (Grounds 10 and 23).
(6) Whether the learned trial Judge properly applied Exhibits Z6, T, V and Z23 in determining the case and deciding the rights of parties. (Grounds 12, 13, 14, 15 and 16)
(7) Whether the learned trial Judge properly construed Exhibits Z24, Z31 and evidence of Hyginus Tochukwu Ngwu as evidence against interest and whether the 1st set of Respondents discharged the burden of proving the boundary between the two communities (Grounds 7, 18 and 19).
(8) Whether the Appellants are entitled to an order of forfeiture, having failed to prove title to land in dispute and Customary tenancy against 1st set of Respondents (Grounds 6 and 8)
(9) Whether the 2nd set of Respondents being bonafide purchasers for value without notice are entitled to the preservation and protection of their interest in the subject matter. (Ground 20)
(10) Whether the suit of the Appellants being statute barred would affect the counter-claim of the Respondents (Grounds 21 and 22).
The 2nd set of Respondents filed their amended Respondents brief on 9/2/2021, wherein they incorporated a notice of Preliminary Objection, saying the appeal was incompetent. They also raised complaint against some grounds of the appeal. The 2nd set of Respondents also filed a Respondents’ notice, contending that the decision of the trial Court should be affirmed on grounds other than those relied upon by the trial Court, pursuant to Order 9 Rule 2 of the Court of Appeal Rules, 2016.
For issues for determination of the appeal, the 2nd set of Respondents donated 3, namely:
(1) Whether the trial Court was right in dismissing the claims of Appellants (Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9 and 11)
(2) Whether the trial Court was right in granting the counter-claims of the 1st set of Respondents (Grounds 10, 12, 13, 14, 15, 16, 17, 18 and 20)
(3) Whether the trial Court was right in granting the counter-claim. (Grounds 20, 22 and 23) For the Respondents’ notice, the 2nd set of Respondents stated in their said notice, filed on 7/5/2019, that:
A: The trial Court found as a fact that the claim of the Appellants is statute barred and this finding has not been appealed against.
B: That having found that the claim of the Appellants was statute barred that the only option open to the trial Court was to dismiss the case of the Appellants without going into the merit of the Appellants’ suit.
C: That the decision or finding of the trial Court that the suit of the Appellants is statute barred is equivalent to the Court holding that the Court has no jurisdiction to entertain the suit of the Appellants.
And for the preliminary objection, the 2nd set of Respondents argued that Appellants did not state the suit number of the suit appealed against nor the parties to the suit in the notice of appeal filed on 9/11/2018.
RESOLUTION OF THE PRELIMINARY OBJECTION
While noting the observation of the 2nd set of Respondents, that the notice of appeal by Appellants did not carry the suit number, and the names of the parties in the body of the application (notice of appeal), the Respondents cannot deny the fact that the suit number and parties to the suit are carried on the face of the process (document), as the suit number (Suit NO. E/13/2012) appears on the top right corner of the process (motion paper) and the names of the parties are also listed before the words “NOTICE AND GROUNDS OF APPEAL” are stated. The Respondents cannot therefore claim to be misled by the non-disclosures of the suit number and parties in the body of the notice of appeal, after the words: “TAKE NOTICE THAT…”
Of course, the parties knew the suit number appealed against and had filed their briefs accordingly, to contest the Appeal.
On the complaints against some of the grounds of appeal, raised by the 1st and 2nd set of Respondents, we have stated and held several times that objection to some grounds of appeal, does not tantamount to preliminary objection, under Order 10 Rule 1 of the Court of appeal Rules, 2016, that objection to grounds of appeal are properly done by filing a motion, highlighting the offending or alleged defective grounds of appeal, and arguing the points in the Respondent’s brief, or separately. A preliminary objection can only lie, where the Respondent is attacking the competence of the appeal, as a whole. See the case of Okereke & Anor Vs Adiele (2014) LPELR – 24103 CA; Alaribe Vs Okwuonu (2015) LPELR – 24297 CA; Ekweogu & Ors Vs Anyama & Ors (2020) LPELR – 49292 (CA); Nwaolisah Vs Nwabufoh (2011) LPELR – 2115 (SC); Umanah Vs NDIC (2016) LPELR – 42556 (SC).
I therefore dismiss the so-called preliminary objections by the Respondents, both 1st and 2nd sets.
RESOLUTION OF THE ISSUES
I have considered the arguments by counsel to parties on all sides, and I think the 2nd set of Respondents’ joinder was absolutely unnecessary in the entire case, as they simply came under the 1st set of Respondents, having been put on the land by the 1st set of Respondents, and to the knowledge of the Appellants who sued them for buying from the 1st set of Respondents. The decision of the trial Court had simply affirmed their entry/stay on the land by virtue of their right of purchase of the 500 Plots from the 1st set of Respondents.
It appears the sale of the said 500 Plots of the land to the 2nd set of Respondents was what triggered the entire aggression by the Appellants against the 1st set of Respondents, as Appellants suddenly filed the suit in 2012 after the purchase and tried to invent history or create same, to justify their desire to chase out the 1st set of Respondents from their ancestral home, claiming they (Appellants) settled the 1st set of Respondents on the land and seeking an order of forfeiture, alleging that 1st set of Respondents had forfeited their right to stay/occupy the land, having challenged the right/title of their over lords!
Of course, by their claims, Appellants had undertaken a very tough assignment. They had a duty to establish their ancestral rights over the land in dispute; how and when they let the 1st set of Respondents into the land; the terms and conditions of their (Respondents) stay on the land, and how they (Respondents) breached those terms and conditions to entitle the Appellants to enter or re-enter the land and seek to vacate or evacuate the Respondents, taking over their (Respondents) developments on the land. And that being a declaratory relief, they (Appellants) must succeed on the strength of their case. With the above observation in view, I think the proliferated issues for determination of the appeal by the Appellants can be narrowed to three, namely:
(1) Whether the trial Judge was right in holding that Appellants failed to prove their claims of title to the lands in dispute, by their traditional history.
(2) Whether Appellants’ claim/suit was statute barred.
(3) Whether the Respondents were entitled to judgment, in the circumstances, as per their counter-claims, as held by the trial Court.
I shall take the three Issues together.
Arguing the appeal, the learned senior counsel, Prof. Ilochi A. Okafor, SAN., who settled the Appellants’ brief, argued that the traditional history presented by Appellants was more credible and cogent, than that of Respondents and should have been believed by the learned trial Judge, as opposed to that of the Respondents, which counsel said, was full of contradictions and distortions and Respondents (Ogbeke) did not know or disclose where they migrated from.
The learned senior counsel argued that the Appellants were “the Primus Settlers” and “Original settlers who first migrated into Nike; that “Ibagwa is first among the primus settlers, while the secondus settlers later in Nike, where the Primus Settlers, their host communities, settled them. That Ogbeke (the 1st set of Respondents) is a secondus settler, otherwise called Awbia (strangers); that Ibagwa being the first settlers in Nike before the 16th Century, settled, possessed, owned and controlled the entire lands of Ibagwa, including the ones in dispute in this case…”
Even if the above evidence were the correct and true historical account about settlement of persons in Nike (which is doubtful, and was not substantiated), to accept it would amount to allowing Appellants to destabilize the peaceful settlement of the parties, who have, according to them, co-existed, since 16th Century, just to assuage their (appellants) ego and selfish/clannish motives, after living together peacefully and relating with Respondents who lived and developed their lands for over 5 Centuries. Appellants wanted their neighbouring community to be sacked and evacuated!
Counsel had submitted that the 1st set of Respondents “the Ogbeke people in recent years started trespassing into same (the land in dispute), starting in 1984 when the matter was referred to the Nike Community council of Elders/HRH Igwe E.A. Nnaji, who gave judgment in favour of Appellants (Exhibit T); that prior to 1984, the Appellants (Ibagwa) had documents in proof, that they had been transacting, leasing, defending and even receiving judgment debt over the lands in dispute; that Appellants also relied on books on Nike history supporting their traditional history – Exhibits B & D; that Appellants further relied on an intelligence Report of 1932 on North Nkanu (Exhibit U), showing that as far back as 1932, Appellants had always been known as Amadi (Owners of Nike), while Ogbeke, 1st set of Respondents, had always been known as ‘Awbia’ (strangers).” See Pages 3 and 4 of Appellants’ brief, and Pages 3735 – 3736 of the records of appeal.
The 1st set of Respondents (Ogbeke people), on their part, led claims to being the original settlers in Nike, saying “the place where the original founder or inhabitants of Ogbeke came from is unknown to history. The original inhabitants of Ogbeke have never been known to come from anywhere.” (See Page 3736 of the records of appeal.
The trial Court’s findings on these rival traditional histories and claims was:
“On one hand, (evidence shows) that all inhabitants of Nike (Ibagwa and Ogbeke inclusive) migrated from one place or the other into Nike. On the other hand that Ogbeke did not migrated from anywhere. My opinion on this is that the bottom line is that both Ibagwa and Ogbeke were migrants. That while Ibagwa claim that they migrated from Igala in Kogi State before the 16th Century, on the part of Ogbeke, the Ogbu-Eke (their ancestor) migrated into Nike beyond human memory. May be, even before or after the 16th Century.” (See Page 3736 of the Records of Appeal).
Appellants’ counsel had tried to trace contradictions and inconsistency in the account of the Ogbeke people. But what is obvious is that, both the Ibagwa (or Ibeagwa) people and Ogbeke people have settled in Nike for centuries, and both lay claim to Nike (as their surnames) and are both called and traced to Nike as their common heritage. They have co-existed together, peacefully pursing their respective communal interests, mingling, integrated and interwoven, as shown in the relationship between the 2 set of Respondents, whereof the 2nd set of Respondents, who actually belong to Appellants’ group (Ibagwa), bought the land from the 1st set of Respondents!
Modern governments and their programmes and policies have recognized them (Appellants and 1st set of Respondents) as separate autonomous communities in Nike, and have Gazetted them, with traditional rulers, thereby recognizing them as communal and geographical entities; as valid, authentic and legitimate settlers in their individual territories. (See Exhibits Z15 and 16 (Grant of autonomy to Ogbeke in 1999 and its Gazette)).
Exhibit Z17-18 (Recognition of Igwe Dennis Ekete as Traditional Ruler of Ogbeke and his certificate of recognition); Exhibit Z 19-Gazette No. ERLN No. 24 of 1959, which captured 1st set of Respondents as distinct community/quarters from Ibagwa; Exhibit Z 29 (a memorandum of understanding between, Enugu Government and Ogbeke community, showing that the State Government has a Housing Estate in Ogbeke, where the Government paid compensation to Ogbeke for crops; Exhibit Z 34 (Enugu State Development Area Law of 2007), which divides Enugu East Local Government into 4 development areas, showing Ogbeke is in Iyi-Uwgu Development Centre, with Headquarters at Ugwogo and Ibagwa is in Enugu East Development Centre with Headquarters at Nkwo Nike. See pages 3750 to 3753 of the Records of Appeal. These all, attest to government decisions, policies and laws, recognizing both Ibagwa and Ogbeke as separate distinct autonomous communities, thus, perishing the thought of customary tenancy, in my opinion.
Therefore, with all the above named government decisions and policies/programs (among others), recognizing the 1st set of Respondents (Ogbeke people) as separate autonomous community, with a territory and traditional domain, it baffles me that some primitive and small minds in Ibagwa community, could still imagine that the 1st set of Respondents (Ogbeke people) were their (Appellants’) customary tenants, and in 21st Century, seek an order of Court to vacate and evacuate them from the land/territory they have come to know as their home land, since (according to Appellants) the 16th Century, and to seek for forfeiture of the land against the Respondents! (See Appellants’ relief D at the trial Court).
That to me, was an audacious display of mischief and aggression, fueled by primitive sentiments and ignorance. I think Appellants are trouble shooters and aggressors, out to stoke communal strife, rancor, hatred and conflict, which can consume the communities and breach the peace in the State.
I have not seen when and how Appellants gave the Respondents their original place to settle in Nike, and the terms/conditions for the said grant, and how the 1st set of Respondents breached the said terms and conditions, to warrant the claim of Appellants for forfeiture. One who seeks forfeiture of communal land, must establish the existence of the grant, and the terms and conditions thereof. See the case of Laarokun & Ors Vs Kadir (2019) LPELR – 47715 (CA); Okpala & Ors Vs Okpu & Ors (2003) LPELR – 2513 (SC).
In the case of Omah Vs Omah (1989) 1 NWLR (Pt.99) 514, it was held:
“It is well settled that forfeiture is the usual mode of determining a customary tenancy. The real basis of misconduct or misbehavior which renders the tenancy liable to forfeiture is the challenge to the title of the overlord. This maybe by alienation of part of the land, under claim of ownership, refusal to pay tribute due or, indeed, direct denial of the overlords title by setting up a rival title in the customary tenant himself…”
See also Akinlagun & Ors Vs Oshoboja & Anor (2006) LPELR- 348 (SC); Eyigebe Vs Iyaji (2013) LPELR-20522 SC.
In the case of Solabi & Ors Vs Ojugbele & Ors (2019) LPELR – 48377 (CA), this Court said:
“…a party who alleges another to be a customary tenant must plead the incidence of customary tenancy. See Dim Vs Ewemou (2009) 10 NWLR (Pt.1149), Kano Vs Maikaji (2011) 17 NWLR (Pt. 1275) 139… It is settled law, that under native law and custom to prove Ishakole (tribute), the Plaintiff must adduce clear evidence on thing or things paid, the payee or receiver, the time when it is paid and other circumstances surrounding it. Bare assertion of payment or that a person is a customary tenant, is insufficient. See Are Vs Ipaye (1990) 21 NSCC (Pt 1) 426.
Also in Dashi Vs Satlong (2009) 5 NWLR (Pt 1134) 281 at 295 – 298, it was held by Tabai, JSC, thus:
“Unless it is otherwise excluded, the main feature of a customary tenancy is the payment of tributes by the customary tenant to the overlord…’’ See also the case of Mitini Nyauwaro & Ors Vs Babiya Ogegede (1971) NSCC 206 at 211.”
I should also add that, even in the event of the Appellants having granted the land which 1st Set of Respondents occupy to them (and this is not conceded), the law is that succeeding generations of Appellants cannot revoke such grant after so many years of living and enjoying the same (by which time the Respondents would have developed the land and adapted to same, as home). See the case of Ekpa & Ors Vs Utong & Ors (1991) LPELR-1084 SC, where the Supreme Court held:
“I think it has to be conceded that a person is completely without power or competence, to revoke a completely constituted gift of land, made inter vivos by his ancestors, who let the donee into possession some one-and-a half centuries ago, unless, perhaps, he can show that such a gift was subject to a condition, which has been broken…” See also Amaefula Vs Mbaegbu & Anor (2018) LPELR-46627 (CA) which applied the said principle in Ekpa Vs Utong (Supra).
In this case, Appellants’ claims appear to have been defeated, from the onset, when they (Appellants) opted to join the 2nd set of Respondents, as defendants, whereof they acknowledged the 2nd set of Respondents, as being sued “for themselves and on behalf of members of Greater Ibeagwa Aneke Ode Youths of Ibeagwa Autonomous Community.” That means, the 2nd set of Respondents, being of the same Ibeagwa community (which Appellants claimed to represent) had acknowledged the 1st set of Respondents (Ogbeke people) as the owners of the lands in dispute, including the 500 plots sold by Ogbeke people, to the 2nd set of Respondents! See Awosanya (Rtd) Vs Fed. Ministry of Environment & Urban Devt & Ors (2021) LPELR – 52707 CA.
Appellants had referred us to, and relied on the decision of Nike Council of Elders/ HRH Igwe E.A. Nnaji of 1984 ( Exhibit T), where it was said (among other things):
“However, after a detailed investigations, the council of elders discovered that this is a case involving father and son, in that Ibeagwa has been harboring Ogbeke people from time immemorial and as such has allocated some portions of land (the lands verged purple in the litigation plan) to Ogbeke people for farming and as their own landed property and this singular act qualified Ogbeke Nike to become a Village.’’
The above, in my opinion, is also evidence against interest of Appellants, showing the background relationship between Appellants and 1st set of Respondents i.e. Ibeagwa (or Ibagwa) people and Ogbeke people, all of Nike; that it was that of “father and son” and that, they have been staying together “from time immemorial’’ and that “Ogbeke had been allocated the lands for farming “as their own landed property and this qualified Ogbeke Nike to become a village. (It should also be noted that at the time of the decision in Exhibit T, both Ibagwa and Ogbeke were one community, under the said HRH Igwe Nnaji, as Eze!)
The 2nd set of Respondents had filed a Respondents notice, saying that the judgment of the lower Court could still have been for Respondents on another ground, other than that used by the trial Court, that the suit of Appellant was statute barred, having asserted that the cause of action accrued, since 1984, but Appellants took out the suit on 27/4/2012. Counsel for the 2nd set of Respondents had relied on Section 20(1) (a) and 22(2) of the Actions Law, Cap 4, Laws of Enugu State, 2004, to say that the suit was statute barred and should have been dismissed (or struck out) on that ground.
Of Course, Appellants did not agree with the 2nd set of Respondents, and even urged us to discountenance the Respondents’ notice, that it was filed out to time. Appellants’ counsel also said the Respondents were wrong to rely on mere observation of the trial judge, (mere obita) to raise the issue. The Court had said:
“The failure of the Plaintiffs’ to plead and lead evidence as to when the cause of action in this suit arose, shows that the case did not disclose any reasonable cause of action…”
Counsel said that was an obiter dictum, which cannot lie on appeal. See Odunukwe Vs Ofomata & Anor (2010) LPELR-2250 SC. He also said that the Respondents did not plead the issue of statute bar. He also said that since Appellants claim was founded on customary law, the Section 18 of the Action Laws protected them and so the Sections 20(1) (a) and 22 (2) of the Action Law would not apply to this case.
Sections 20(1) (a) and 22(2) of the Action Law of Enugu State, state:
20(1) (a):
“The following action shall not be brought after the expiration of six years, that is to say: (a) actions founded on simple contract or tort”
22(2):
“No action shall be brought by any other person to recover any land after the expiration twenty years from the date on which the right of action accrued to him or if accrued to some persons through whom he claims, to that person:
Provided that, if the right of action first accrued to the State, the action may be brought at any time before the expiration of the period during which the action could have been brought by the State, or of twelve years from the date of which the right of action accrued to some person, other than the State, whichever period first expires.”
We have stated the law repeatedly that the issue of limitation to sue to recover land does not apply in a situation of continuing trespass on land, in respect of land holding under customary law. See Okanu Vs Anoruigwe & Anor (2019) LPELR – 48835 (CA); Obueke Vs Nnamchi (2012) 12 NWLR (Pt.1314) 377. Thus, issue of statutory limitation or limitation of time to bring the suit, appears not to be directly relevant to this Appeal.
I am not also sure this case at hand falls under one of continued trespass (as Respondents were not held to be in trespass), nor of customary holding of land (as the alleged claim of customary tenancy has been debunked). I however find it unconscionable and inexplicable, that Communities which have been staying peacefully together for centuries, and even up to 1984, without land frictions, would suddenly be thrown into disputes and conflict, because some aggressive individuals, among the Appellants, rose up to ruffle the feathers, attempting to stoke crises in 2012, probably because the 2nd set of Respondents took interest in the property and bought 500 plots of the land in dispute from the 1st set of Respondents! I think in such a situation, Appellant should be barred from creating trouble and crises in the Community, to satisfy their aggression. They should be estopped, especially as the document of transfer of interest in the 500 plots of land to the 2nd set of Respondents by the Ogboke people (1st set of Respondents) was witnessed by a member of the Appellants, namely, HRH Igwe Emma Ugwu (1st Appellant), who testified as prosecution witness (PW). See Exhibit Z 20 (the Irrevocable Power of Attorney). It is in evidence, that the said Igwe Emma Ugwu of Ibagwa Community, signed the document, (though he denied unsuccessfully at the trial) to the effect that the land belonged to Ogbeke (the 1st set of Respondents). See also Exhibit Z6 and Z23 (an agreement between 1st Defendant and Venatus Eze of Umunona Ibagwa, permitting him (Ibagwa man) to tap Raffia Palm at Iyi-Ukwu, in Ogbeke , which the trial Court held as evidence against interest of Ibagwa people. (See the findings of the trial Court on page 3753 of the Records of Appeal).
The Court also observed that the 2nd set of Respondents were of Ibeagwa stock (page 3751 of the Records). The trial Court had also referred to the evidence of Friday Atama, in Suit No. E/51/86, a native of Ihunwazekwe and Ajama of Ibagwa, stating that Ibagwa people were later comers to Nike and that the strangers of Ibagwa are not Chief Priests, and that Ogbeke Nome is the boundary between Ibagwa and Ogbeke Nike. See Exhibit Z13 and Z14. (See Pages 3748 the Records).
See also Exhibit Z11 (Suit No. E/496/2012), where Engr. Stephen Nnaji of Ibagwa gave evidence that Ogbeke Nome is the boundary between Ibagwa and Ogbeke Communities (See Page 3748 of the Records of Appeal). Thus, the boundary as stated by 1st set of Respondents was upheld showing that Appellants did not even know the correct boundary! The trial Court did not see the identity of the land in dispute as an issue, but the boundary between the two communities, which was resolved for Respondents.
Of course, those were clear evidence against interest of Appellants, (as presented by some reasonable members of Ibagwa Community, who might have cherished the values of peaceful co-existence, between the two communities, in my opinion). Those pieces of evidence, by members of the Ibagwa Community were certainly against interest and the cause pursued by the Appellants. See the case of Odiedi Vs Onorikuta & Ors (2020) LPELR- 51255(CA), Odi & Ors Vs Iyala (supra); Akomolafe Vs Guardian Press Ltd (Printers) (2010) All FWLR (Pt.517) 773, on evidence against interest. In the case of Aliu Vs Inang & Ors (2020) LPELR- 50266 CA, this Court said:
“The cumulative import of all those pieces of evidence, translates to mean that claimant adduced evidence against her interest, and thereby strengthened the case for the respondents, that the property under consideration is family property. It is the law that evidence extracted under cross-examination, which is clearly against interest, is considered as the best evidence in law, as the law will not permit litigant to blow hot and cold at the same time. See Iniama Vs Akpabio (2008) 17 NWLR (Pt. 1116) 225, Ezenwa Vs Ekong (1999) 11 NWLR (Pt. 625).
See also Artra Industries Nig Ltd Vs NBC 1 (1998) 4 NWLR (Pt. 546) 357 at 408, where the Supreme Court held:
“A statement, oral or written, made by a party to civil proceedings, which is adverse to his case is admissible in the proceedings as evidence against him of the truth of the facts asserted in the statement.”
With the pieces of evidence of some members of Appellants’ community against their interest in the case, and the clear evidence, suggesting that the 1st set of Respondents were not Appellants’ customary tenants in the land they occupied, and that the 2nd set of Respondents (members of Appellant community) had, in fact, purchased their land, bonafide, from the 1st set of Respondents (and Appellant had admitted this by making the 2nd set of Respondents parties in the case – cause of action), it became obvious that the counter-claims were admitted and established, and I think the trial Court was even quite considerate by awarding only N100,000.00 each, as general damages to each of the sets of Respondents. I should also add that the observation of the trial Court, at the locus in quo, appeared to simply agree with the evidence before the Court (oral and documentary), that the boundary between the two Communities was the Ogbeke Nome stream or river.
I see no merit in this appeal and so dismiss it as I resolve the issues against Appellants.
Appellants shall pay cost of this appeal, assessed at N100,000 each, to each set of Respondents, that is, N200,000 (Two Hundred Thousand Naira) in all, for the Respondents.
AHMAD OLAREWAJU BELGORE, J.C.A.: In this case, the learned trial Judge at page 3737 held that the two traditional histories (offered by the Appellants and the 1st set of Respondents) are very unreliable and in his words-
“l cannot rely on any of them in the determining of this aspect hence there are other methods of resolving them since both parties, in my view are migrants into Nike lands…
However in (Exhibit T), the judgment reads as follows:
‘After detailed investigations, the council of elders discovered that this is a case involving father and son in that Ibagwa has been harboring Ogbeke people from time immoral and as such has allocated some portion of land (the land verged purple in the litigation plan) to Ogbeke people for farming and as their own landed property and this singular act qualified Ogbeke Nike to become a village. This was the judgment of Nike Council of Elders. H.R.H. lgwe E.A. Nnaji in 1984’.
The document Exhibit ‘T’, a copy of settlement of Ibagwa and Ogbeke land ownership of dispute is relevant and should be given relevance in this matter. This is because, even though the 2nd set of Defendants opposed it, it was never opposed by the 1st set of Defendants.”
This Exhibit ‘T’ which is sometimes referred to as Exhibit ‘E’ is at pages 961 – 962 of the record of appeal. It was certified by the customary Court on 10-3-2014.
The learned trial Judge chose to discountenance this piece of evidence, hence he did not give it any consideration as he had earlier promised to do (See page 3746 of the record) instead, he hammered on Exhibits Z6 and Z61 to hold that the 1st Appellant signed Exhibit Z6 as a witness to the power of attorney and as such has given evidence against interest. That was after admitting that he was not a handwriting expert.
I have gone through the judgment of my learned brother, ITA GEORGE MBABA JCA just virtually delivered.
I dismiss the appeal based on the reasons adumbrated in the lead judgment of my learned brother, ITA GEORGE MBABA JCA.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ITA GEORGE MBABA, JCA and I totally endorse the reasoning and conclusion therein.
I equally find no merit in this appeal and I therefore dismiss it.
I adopt the consequential orders in lead judgment as mine.
Appearances:
PROF. ILOCHI A. OKAFOR, SAN, with him, FABIAN OKONKWO ESQ. For Appellant(s)
CHIEF MRS. A.J. OFFIAH, SAN. who supported the argument of the brief settled by IKECHUKWU ONUOMA, ESQ. – for 1st set of Respondents.
E.N. ONYIBOR, ESQ., with him, ADA ONOVO – for 2nd set of Respondents For Respondent(s)
