Nze V. Onyeachugwo (2021)

LAWGLOBAL HUB Lead Judgment Report

TIJJANI ABUBAKAR, J.S.C. 

This appeal is against the judgment of the Court of Appeal Owerri Division, delivered on the 22nd day of March, 20131 wherein the Appellant’s appeal against the judgment of the trial Court was unanimously dismissed by the lower Court.

The claim of the Respondent in this appeal as Plaintiff at the trial Court as per the writ of summons taken out on the 11th day of January 1989 reads as follows:

1. N1,000.00 being damages for trespass to the plaintiff’s parcel of land known as and called “ALA NWOKWU” in plaintiff’s possession situate at Umunyado Irete within jurisdiction
2. Injunction restraining the defendant by herself, servant and/or agent from committing further acts of trespass on the said land.

The facts grounding this appeal are that the land subject of this appeal known and called “Ala Nwokwu” is an integral part of a larger parcel of land situate at Umungada Irete. The Plaintiff’s claim at the trial Court is that the land in dispute was a gift made to him by his father, Chukwunyere about 40 years prior to the commencement of the suit at the trial Court. The Plaintiff also claimed that his own father who gifted the land to him inherited the land from his grandfather Onyeachugwo, a descendant of one Ogbuehi Akuzuo, the father of Onyeachugwo and Okenwa. Plaintiffs claim before the trial Court was therefore that the land was given to him by his father who also inherited the land from his father.

The defendant Appellant in this appeal on the other hand claims that the said land known as “Ala Nwokwu” is a family land belonging to the Plaintiff’s larger family known as Umuogbuehi. That the said land was sold to the Defendant Appellant by the head of the Urnuogbuehi family one Michael Okenwa and other principal family members. The Defendant therefore claimed that the land was sold to her by the family of the Plaintiff and that she was issued purchase receipt tendered as Exhibit C at the trial.

Both parties tendered survey plans at the trial and were admitted in evidence by consent of the contending parties. In 1977, the Appellant started to erect a building on the said land, the Respondent along with members of his family closed up the foundation. The Appellant again started to erect a wall on the land, again the Respondent pulled it down, the matter eventually went to High Court of Imo State, Owerri.

At the conclusion of trial, judgment was entered in favour of the Respondent. The Appellant became aggrieved and lodged an appeal at the lower Court, the Court of Appeal Owerri. The lower Court in its judgment delivered on the 22nd day of March, 2013, dismissed the Appellant’s appeal and affirmed the judgment of the trial Court. The decision of the lower Court therefore nettled the Appellant who further appealed to this Court on the 13th day of June, 2013. The Appellant’s notice of appeal contained nine grounds of appeal.

Appellants brief of argument was filed on the 15th day of September, 2021 by learned Senior Counsel Chief Mike l. Ahamba SAN. In the Appellant’s brief of argument, learned senior Counsel nominated and argued six issues for determination, the issues are reproduced as follows:

a) Whether the Court of appeal’s decision that the respondent proved possession of the land in dispute is correct in law considering the pleadings and legal evidence on record. (Ground 1 and 2)

b) Whether the evidence of the respondent and his witnesses on record were not inconsistent with respondent’s pleaded root of title and, if the answer is in the affirmative, whether the suit should not have been dismissed (Ground 3 and 9).

c) Whether the decision of the Court of appeal that the vice-voce denials by the respondent of the fresh facts in the statement of defence thus making a reply unnecessary was correct in law. (Ground 4).

d) Whether the applicant did not, based on the pleadings and evidence on record, proved the purchase of the land in dispute from the Umuogbuehi larger family of which the respondent is a member. (Ground 5 and 6).

e) Whether the sustenance by the Court of Appeal of the trial Court’s decision that exhibit C was without probative value, after the Court had expressly held that the validity or genuineness of the exhibit was not in issue, was correct in law. (Ground 7).

f) Whether the appellant’s defence was, as held by the Court of appeal, based on jus tertii. ( Ground 8)