Fugbara John & Ors V. Sir Uche Amaechi & Ors (2016)

LawGlobal-Hub Lead Judgment Report

PETER OLABISI IGE, J.C.A. 

This appeal is against the judgment of the Abia State High Court contained in the judgment of Honourable Justice K. O. Wosu delivered in Suit No. HU/21/2011 on the 25th day of September, 2013.

The 1st set of Respondents as claimants in the Lower Court had by their Writ of Summons issued out of the said Court on 25th February 2011 claimed against the Appellants and the 2nd set of Respondents the following reliefs:
?1. A declaration that the Claimants are entitled to the right of occupancy of a piece or parcel of land situate and lying in an area of land traditionally known as and called ?Ovoro Umuofoukwu? in Umuofoukwu Dikenta Ekenobizi Umuopra in Umuahia South L.G.A. Abia State Nigeria within the jurisdiction of the Court with an annual rental value of N10.00.
2. The sum of N450,000.00 (Four Hundred and Fifty Thousand Naira) being damages for trespass into the aforesaid piece or parcel of land in the possession and occupation of the Claimant.
3. An injunction permanently restraining the Defendants, their servants, agents, and/or

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their workmen from trespassing into the said piece or parcel of land or interfering with it in any manner whatsoever.?

?The Appellants as 1st Sets of Defendants Counter Claimed against the 1st and 2nd Respondents who were the Claimants in the Lower Court as follows:
?COUNTER ? CLAIM
The 1st ? 3rd defendants hereby counter-claim against the claimant as follows:
(a) A Declaration that the 1st to 3rd defendants are entitled to the Statutory Right of Occupancy of the piece or parcel of land traditionally known as and called ?OVORO NGODO? Verged Red in the Survey Plan No. LD/MGZ004/2011 filed with the Statement of Defence which is situating at Ngodo Village, Ehume Umuopara in Umuahia South L.G.A. Abia State of Nigeria within the jurisdiction of this Court.
(b) The sum of ONE MILLION (N1,000,000.00) being general damages for trespass into the aforesaid piece or parcel of land which is in the peaceable possession and occupation of the 1st ? 3rd defendants.
(c) An injunction permanently restraining the claimants, their servants, agents, and/or workmen from further trespassing to the said piece or

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parcel of land or interfering with it in any manner whatsoever.
The defendants shall at the hearing rely on the averments in the Statement of Defence in establishing or proving the Counter ? Claim.?

At the end or close of pleadings the matter proceeded to hearing and after the addresses of Learned Counsel to the parties, the Learned trial Judge delivered a considered judgment and concluded as follows:
?The visit of the Court to the locus and the observations in the light of features all the parties showed the Court support the features as pleaded and given in evidence by the claimants. Ahi is a Stream with a Concrete Bridge. A Stream is a small narrow river whereas a river is a large amount of fresh water flowing continuously in a long line across land according to BBC English Dictionary. In other words, Ahi is a small river. It follows that Ahi may be called a river or a stream. Therefore DW1 and DW3 of the 1st set of defendants gave false testimony over a matter within the knowledge when they said under cross-examination, that there is no bridge over Ahi River or stream whereas there is one. DW2 of the 1st set of defendants

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also gave false testimony when he said under cross-examination that person can walk past Ahi River whereas the Court?s visit to the locus shows otherwise because there is a concrete bridge across the stream or river. I found too that the said river is the natural boundary between the claimants and the 1st set of defendants who I found reside on the other side of the bridge along the road from Umuahia Owerri Tarred Road/Umuopara secondary school. DW4 of the 1st set of defendants said inter alia that his people do not have common boundary with the land in dispute. He also named four persons including DW3 who own land in the land in dispute contrary to their pleading that the said land is commonly owned. I hold that these witnesses including the (DW3, and the 3rd defendants on record) are star witnesses for the 1st set of defendants. Their evidence under cross-examination as highlighted above leaves no room to ascribe any credibility to them in respect of issues before the Court. See DAGGASH V. BULAMA (2004) 14 NWLR PT. 892, 144, & ODIVE V. OBOR (1974) 1 SC 2.
DW7, Chief Chibuike Iheme and DW8 Elder P. E. Biko both of the 2nd set of defendants

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admitted that the 2nd set of defendants were not paid compensation by NNPC over the land in dispute. These piece of evidence supports the case of the claimants.
In the final result, from the foregoing, I find and hold that on the preponderance of evidence and balance of probabilities, the claimants have proved that they have better title to the land in dispute much more than the defendants. When the Claimants evidence on acts of possession and ownership is placed on an imaginary scale, I am satisfied the claimants have adduced a more probable and more credible evidence over the above the two sets of defendants in this case. In other words, the scale tilts in favour of the claimants.
This suit therefore succeeds. Judgment is hereby entered in favour of the claimants against the 1st & 2nd set of defendants as per reliefs claimed except with respect to their 2nd relief on damages for trespass which is hereby fixed at N200,000.00 (Two Hundred Thousand Naira) only.
The Counter-Claim of the 1st set of defendants fails, it is hereby dismissed.?

The Appellants were aggrieved by the said judgment and they filed a Notice of Appeal dated 1st