Michael Ifeanyi Ojibah V. Ubaka Ojibah (1991)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C. 

This is a further appeal by the plaintiff against the judgment of the Court of Appeal, Enugu Division, coram Ikwechegh Katsina-Alu and Macaulay, JJ.C.A. which had dismissed an appeal against the judgment of F. O. Nwokedi, J., sitting in an Onitsha High Court.

In the High Court, the plaintiff had claimed for a declaration that he was entitled to a statutory right of occupancy over the piece or parcel of land situated at Ogbeodogwu village, Onitsha (hereinafter called the land in dispute), N1,000.00 damages for trespass and perpetual injunction restraining the defendant, his servants and agents from any further trespass to the land.

The Plaintiff’s case was that the land in dispute was given to him by his late father, Mr. Francis U. Ojibah, in his life time, in appreciation of his brilliant academic performance. In paragraphs 6 and 9 of the statement of claim he averred as follows:

“6. In 1956 when the plaintiff was proceeding overseas to study Law the plaintiff’s father told the plaintiff that he will own 40, Awka Road and the adjoining lands when the plaintiff completed his studies.

9. By a Deed of Conveyance registered as No. 18 at page 18 in Volume 1012 of the Lands Registry in the office at Enugu the Plaintiff became the owner of a property situate between 40 Awka Road and Tasia Road, Onitsha. The Deed shall be founded upon during the trial”.

He himself also pleaded that the dispute over the land between him and the defendant, his brother of full blood and the first son of their father, was arbitrated upon by the Obi of Onitsha in Council and that the arbitrators decided that he should allow the defendant to build on the land in dispute. He however averred that he had told them that the land which was given to him by his father was not a subject for compromise.

The defendant’s case was that:

“5. The plaintiff was given a piece or parcel of land measuring 100′ X 50′ along Tasia Road but the area does not extend to Awka Road. The alleged Deed of Conveyance which the plaintiff claims to derive title from is not and cannot be a true and correct document. The legality of the document will be contested at the trial. The defendant will at the trial urge the court to set aside the said Deed of Conveyance in paragraph 9 of the settlement of claim and declare same as null and void.

6. The late F. U. Ojibah died intestate there is no evidence that long before Mr. Ojibah’s death he allocated in his time No. 40 Awka Road, Onitsha to the plaintiff. Paragraphs 9 and 10 of the statement of claim are therefore denied.

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10. On 13/8/77 the matter was finally settled in favour the defendant. Evidence will be led at the trial to show that the decision of the native tribunal (i.e.The Obi-In-Council) was in favour of the defendant and is binding upon the plaintiff.”

At the trial, plaintiff alone testified on his behalf in line with his statement of claim and tendered the document, Exh. A, which he stated was a conveyance of the land in dispute to him by his late father.

The defendant testified on his own behalf in line with his statement of defence and called a witness, Chief Joseph Etukokwu, a member of the Obi’s cabinet who took part in the arbitration. He testified how both parties submitted the matter to arbitration, and that they heard both parties. After inspecting the land, they told the plaintiff to hands-off the land and allow the defendant to build on it.

In his judgment the learned trial judge, summed up the crucial aspect of the parties case thus:

“The defendant had earlier reported his dispute with the plaintiff to the Obi of Onitsha and his Council. The plaintiff admitted that he appeared before the Obi and Council and stated his case, but eventually rejected their findings as it was slanted unreasonably in favour of the defendant. He also claimed that the unfavourable decision of the Obi and Council was dubiously secured by the defendant. The plaintiff admitted in cross-examination that he filed no plan with his pleadings in this case. He however denied in cross-examination that he ever submitted to the jurisdiction of the Obi and Council.

He further admitted in cross-examination that there is a house standing at No. 40 Awka Road, Onitsha and that the defendant ever lived there.