Abel Nwofor V. Chinemene Emejiaka Egbu (2000)

LawGlobal-Hub Lead Judgment Report

JAMES OGENYI OGEBE, J.C.A.

The appellant sued the respondent in the High Court, Aba claiming two parcels of land called “Okpulo” and “Umuagbagha” According to the appellant one Ogbonna Nnakwu, the head of Umuagbai family sold the parcels of land to him in 1957. He took possession of the lands and in 1963 he got a surveyor to survey the land. He remained on the land undisturbed until the 1967 civil war. After the civil war he came back and continued to use the land until 1976 when the respondent broke and entered upon the land. It was agreed by both sides that Ogbonna Nnakwu had a dispute with the respondent in suit No. A/35/71 over a piece of land and lost.

The appellant’s case was that that land disputed between Ogbonna Nnakwu and the respondent was a different piece of land from the one now in dispute.

The respondent said it was the same land. The respondent claimed that that land was sold to him and he had been in possession ever since.

The original parties to this dispute died during the pendency of this appeal and were substituted.

The trial court dismissed the appellant’s claim on the ground that Ogbonna Nnakwu had no land to sell to him.

Dissatisfied with that decision, the appellant has appealed to this court and the learned counsel for him filed a brief of argument identifying four issues for determination as follows:

“(1) What is or ought to be the duty of a trial court where a defendant defends a smaller portion of the land claimed by the plaintiff.

(2) (1) Whether the Learned trial Judge was right when he received Exhibit ‘H’ in evidence when that document was neither pleaded, nor filed nor served on the plaintiff.

(ii) If the answer in (a) above be in the negative, then what should the Court of Appeal do in relation to the said document.

(3) Whether the Learned trial Judge was right to hold, as he did, that the burden was on the plaintiff (appellant) to prove that the land now in dispute was not the same as was in dispute in Suit No. A/35/71: Ogbonna Nnakwu v Chief Emejiaka Egbu.

(4) Assuming, without conceding, that the land in dispute in Suit No. A/35/71 Ogbonna Nnakwu v Emejiaka Egbu is the same land now in dispute, then what ought to be the correct interpretation and application of the judgment in A/35/71 (Exhibit J) to the present Suit.”

The respondent did not file any brief and the appellant was granted leave to argue the appeal on his brief alone.

On the 1st issue the learned counsel for the appellant submitted that from two survey plans Exhibit F and Exhibit G which were tendered by the parties the respondent was only disputing part of the land being claimed and not the whole land.