Kenneth Ndukuba & Anor. V. Nwarieji Izundu & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

THOMAS, J.C.A.

The brief facts of this appeal is that the appellants as plaintiffs brought a suit in a representative capacity against the respondent in suit No. HOW/36/74.

The reliefs sought in the claim read:

(a) A declaration of title to the piece or parcel of land known as and called ‘Ikpa Eziama’ situate at Eziama in Owerri Judicial Division.

(b) Two Hundred Naira (N200.00) being general damages for trespass upon the said piece of land.

(c) Perpetual injunction permanently restraining the defendants, their agents from further trespass upon the said piece of land.”

Both parties filed plans. The appellants’ plan is exhibit A, while the respondents’ plan is exhibit M. The appellants’ case at the lower court as can be deduced from their pleaded further-further amended statement of claim at pages 51 – 56 of the record is that the land in dispute was their land from time immemorial, and that they had been in possession and had performed numerous acts of ownership. That such acts of ownership included dwelling on the land, farming there upon and also granting customary farming rights to strangers including the respondents and their people of Umueme Awo as well as doing free labour work on the road. They further alleged that they had also granted a portion of the land in dispute to the Ministry of Works as then known as Public Works Department. The appellants also pleaded and tendered documents stated in their plea of ownership.

The case of the respondents at the trial court is reflected in their further amended statement of defence as can be ascertained at pages 66 – 74 of the record of appeal. Their defence is that the land in dispute belonged to their forefathers from time immemorial. They denied the appellants’ claim that their people who previously occupied some part of the land in dispute was by the permission of the appellants. Both parties called their respective witnesses and tendered some previous judgments on which the respondents claimed that those judgments were in their favour, while the appellants denied same and stated that those previous decisions were later set aside on appeal. The learned trial Judge considered the evidence before the court and delivered his judgment on 16th December, 1996, which was in favour of the respondents. Dissatisfied with the decision, the appellants filed their notice of appeal on 31st January, 1997 with one ground, but on 10th November, 1999 this court granted the appellants to file an amended notice of appeal with 5 additional grounds of appeal, but the amended notice of appeal was filed outside the 14 days period to file the notice of appeal, and by leave of this court again the notice of appeal was regulated and was by leave of court filed on 29th February, 2003.

Distilled from the six grounds of appeal, the appellants formulated three (3) issues for determination as follows:

“2(a) Whether the learned trial Judge did misdirect himself as to the pleadings and evidence of both parties before him in a manner that occasioned a miscarriage of justice.

(b) Whether PW 1 was properly declared a false witness by the trial court.

(c) Whether the appellants did not discharge the onus to entitle them to the reliefs sought.”

On the part of the respondents,the issue raised in their brief is as follows:

“Whether the appellants discharged the onus placed on them so as to entitle them to the reliefs sought?”