Ozibo Local Government & Ors V. Hon. Justice F. C Abosi (2016)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A. 

This is an appeal against the decision of Hon. Justice A. A. Nwaigwe of the Ebonyi State High Court delivered on 21/10/13 wherein His Lordship found that the plaintiff (herein respondent) proved his case on the balance of probabilities and that he was entitled to the reliefs sought. To this effect, His Lordship entered judgment for the respondent against the defendants (herein appellants) jointly and severally as follows:
1) Declaration that the plaintiff is the person entitled to a grant of Right of Occupancy in respect of all that piece or parcel of land situate at No. 6 New Market Road, Abakaliki subject matter of a Deed of Lease registered as No. 86 at Pg. 86 in Vol. 6 of the Lands Registry, Abakaliki.
2) Perpetual injunction restraining the defendants by themselves, agents or privies from committing further act or acts of trespass on the said land subject matter of this suit.
3) N50,000 damages for trespass against the defendants.

The facts that led to this appeal are as follows:
The plaintiff by his amended Statement of Claim filed on 30/05/07 claimed against

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the defendants as follows:
a) Declaration that the plaintiff is the person entitled to a grant of Right of Occupancy in respect of all that piece or parcel of land situate at No. 6 New Market Road, Abakaliki subject matter of a Deed of Lease registered as No. 86 at Pg. 86 in Vol. 6 of the Lands Registry, Abakaliki.
b) The sum of N5m as general damages for trespass.
c) Perpetual injunction restraining the defendants by themselves, agents or privies from committing further act or acts of trespass on the said land subject matter of this suit.

The learned trial judge after considering all material facts placed before him, held that the defendants have no defence in this suit. He also stated that the plaintiff had proved his case on the balance of probabilities and that he is entitled to the reliefs sought. To this effect, His Lordship entered judgment for the plaintiff against the defendants jointly and severally.
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Dissatisfied with the judgment of the trial Court, the appellants initiated this appeal by an amended Notice of Appeal filed on 3/3/14 and deemed filed on 18/3/14. Records were transmitted on 17/1/14. The appellants?

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amended Brief was filed on 3/3/14 and deemed filed on 18/3/15. Appellants? reply brief was filed on 1/5/15. Respondent?s brief was filed on 18/3/15.

In the appellants? brief settled by Emeka Uwakwe Esq, two issues were identified for determination as follows:
1) Whether on the state of the pleadings between the parties and proceedings in Court, it was legally correct and factually defensible for the lower Court to hold that the identity of the land in dispute is not in issue between the parties.
2) Whether it was justifiable for the learned trial judge to enter judgment for declaration of title, damages for trespass and injunction over the land situate at No. 6 New Market Road, Abakaliki in favour of the respondent when there was no evidence that the parcel of land upon which the appellant erected a building on 25/12/02 formed part of the said No. 6 New Market Road, Abakaliki.
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In the respondent?s brief settled by B. N. Onuoha Esq, the two issues identified for determination by the appellants were adopted by the respondent.
I too adopt the issues for determination as set out by the appellant?s counsel.<br< p=””

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ISSUE ONE
Whether on the state of the pleadings between the parties and proceedings in Court, it was legally correct and factually defensible for the lower Court to hold that the identity of the land in dispute is not in issue between the parties.
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Learned appellants? counsel argued that it is erroneous of the lower Court to hold on pg. 243 of the record that the identity of the land in dispute is not in issue. He contended that the parties in their pleadings are in disagreement as to the address and location of the piece of land where the appellants erected the structure in dispute on 25/12/02. Counsel submitted that on pgs 44- 46 paragraphs 4,5,6,7 and 9 of the amended statement of claim, the respondent pleaded that trespass was committed on 25/12/02 by the appellants on the piece of land situate at No. 6 New Market road, Abakalilki acquired through a Deed of Lease (Exhibit A) by the respondent?s late mother and that the said land had a structure on it where they had rent paying tenants carrying on their businesses there. The respondent on pgs 21- 22 paragraphs 3, 4, 5 of the reply to the statement of defence pleaded that the land in

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dispute was not part of Abakpa main market but their own private land granted to their predecessor-in-title in Exhibit A. Counsel submitted also that the appellants on the other hand on pgs 124- 126 paragraphs 5,6,12,13,13A and 14 of their amended statement of defence pleaded that the parcel of land where the 2nd – 5th appellants erected a structure on 25/12/02 is an empty space between Abakpa main market Abakaliki and called Expressline extension which was allocated to the 2nd to 5th appellants by the 1st appellant being the bonafide owner.