Chudi Akunyili Vs Idemili Ejidike & Ors (1996)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C. 

This is an appeal against the judgment of the Court of Appeal, Enugu Division dated the 23rd day of January, 1992. William Akunyili as plaintiff later upon his demise (substituted by Chudi Akunyili upon the latter’s application) had on the 9th day of June, 1972 by his writ of summons, for himself and on behalf of Akunyili family, Nkitaku Agu in the High Court of Anambra State sued the defendants, herein respondents, for themselves and on behalf of Ogbata family of Okpu village, Agulu for:-

“(a) Declaration of title to all that piece/parcel of land the annual value of which is estimated at 10 situate at Nkitaku village, Agulu in Njikoka division (now Ugo Agulu division known as and called “Nwagu be Asegheobele”)

(b) 100 damages for trespass in that sometime in 1968 within the period of the civil war and thereafter continuing, the defendants without leave and licence of the plaintiff broke and erected upon the said piece or parcel of land and thereby caused damage, and

(c) An injunction restraining the defendants, workmen and agents from entering upon the said piece or parcel of land and/or interferring with the plaintiff’s title, right or interest in and over the same.”

Pleadings were ordered, filed and exchanged with amendments made to the statement of claim and statement of defence respectively.

The case went to trial and after the addresses by counsel the learned trial Judge, P.C. Onyia, J. found in favour of the plaintiff/appellant in a well considered judgment dated the 29th day of July, 1988 by declaring him entitled, inter alia, to the property known as and called “Nwagu be Asegheobele” as shown in Exhibit ‘A’, N150.00 damages for trespass against the defendants/respondents, for 1st and 2nd defendants/respondents to provide a reasonable accommodation for the widow of the 3rd defendant/respondent and perpetual injunction against all the defendants/respondents, their servants, workmen and agents.

Being dissatisfied with the decision, the defendants/respondents appealed to the Court of Appeal sitting in Enugu (Coram: Kutigi, J.C.A. as he then was and Oguntade and Uwaifo, JJ.C.A. concurring) which on 23rd June, 1992 allowed the defendants/respondents appeal mainly on the grounds that the plaintiff/appellant failed to prove by traditional evidence that the land in dispute was his family property and so evidence of exclusive possession and ownership did not avail him.

The plaintiff/appellant who cross-appealed against part of the said judgment had his cross-appeal dismissed.

The plaintiff/appellant (who I shall in the rest of this judgment refer to simply as the appellant) sought and obtained leave of the court below to appeal to this court on 21st March, 1992 to file and argue seventeen grounds of appeal, consisting of grounds of law and facts.

The defendants/respondents (hereinafter referred to as respondents) for their part, cross-appealed on one ground only.

Briefs of argument were filed and exchanged by the parties in accordance with the rules of court with the respondents amending their respondents as well as cross-appellants brief while the appellant amended his appellant’s reply as well as respondent’s brief in the cross-appeal.

The appellant submitted five issues as arising in this appeal for our determination, to wit:- .

(a)(i) Having found that the traditional evidence put forward by both parties (i.e. the appellant and the respondents) conflicted, were the justices of the court of appeal wrong in failing to consider the parties acts of possession and ownership as a way of ascertaining which of the conflicting evidence was more probable (Grounds 1 and 6).