AGWAM OBIOHA VS CHIEF NWOFOR DURU

CORAM

SALIHU MODIBBO ALFA BELGORE JUSTICE, SUPREME COURT

ABUBAKAR BASHIR WALI JUSTICE, SUPREME COURT

SOWEMOMI, JUSTICE, SUPREME COURT

SYLVESTER UMARU ONO (Read the Leading Judgment) JUSTICE, SUPREME COURT

ANTHONY IKECHUKWU IGUH JUSTICE, SUPREME COURT

PARTIES

AGWAM OBIOHAJEREMIAH CHUKWUKEREEZURUONYE OBIOHAJOHN WHISKYANYIAM AMARAEGBUS.B. ORISAKWE (For themselves and on behalf of the people of Umueke Owerre Nkwoji) APPELLANTS

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The respondents as plaintiffs claimed for a customary right of occupancy or title to a parcel of land called ‘Mbara Nwakwu Umuchioke’, damages for trespass and perpetual injunction. The case which was fought in representative capacities turned mainly on the traditional history of inheritance and possession.

HELD

The appeal, it was argued, lacked merit and was dismissed. The decision of the Court of Appeal sitting in Enugu was affirmed with N1,000.00 costs to the plaintiffs.

ISSUES

1. Whether the Court of Appeal was right in law in confirming the judgment of the trial Court when the trial Judge did not properly direct himself on the proper approach to be adopted in law where there are conflicts in the traditional evidence adduced by the parties in an action for declaration of title. 2. Whether the Court of Appeal was right in law in confirming the judgment of the trial Court which granted the plaintiffs a declaration of title to the land in dispute when the pleadings and evidence of traditional history of the plaintiffs were incurably hollow and insufficient in law to support the grant of a declaration of title. 3. Whether the Court of Appeal was right in law in holding that the appellants were liable as trespassers on the land in dispute by reason of the fact that they had started to use the land for purpose other that the one for which they were permitted to use it. ?

RATIONES DECIDENDI

WHAT CONSTITUTES TRESPASS

“It is my view that an invitee to premises is invited to use the premises for the purpose for which he is invited or permitted to be there, if he exceeds the area of invitation or permission he becomes, in law, a trespasser.” ( Idigbe, JSC, Okagbue v. Romaine (1982) 5 S.C. 133 at 148 Quoted with approval by) ONU, JSC.

CONFLICT IN TRADITIONAL HISTORY-HOW RESOLVED

The applicable principle as eloquently stated by Lord Denning, inter alia in Kojo 11 v. Bonsie (supra) at page 1226 is:-
“Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred years or more ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of Iwo competing histories is the more probable.” Per ONU, JSC.