Godpower Orlu V. Chief Godwin Onyeka (2006)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS J.C.A.

This is an appeal against the judgment of Charles-Granvile, J sitting at Port Harcourt and Yenagoa Judicial Divisions of the High Court of Rivers State in suits No.PFC/293/79 and YHC/45/95. The matter started in Port Harcourt” but was concluded by the trial Judge when he was transferred to Yenagoa Judicial Division. The proceedings taken under the two suit numbers have been combined together to from the record of appeal.

By a writ of summons filed on 26-10-1979 at Port Harcourt High Court, the plaintiff now to be referred to as the respondent, sued (8) eight persons including the 1st defendant now to be referred to simply as the appellant, claiming jointly and severally as follows:

“1. N10, 000.00 general damages for trespass into the plaintiff’s land known and called AKWADO situate at Mile 3, Diobu, Port Harcourt and registered on No. 71 at page 71 in vol. 38 of the Lands Registry, Port Harcourt Statement of Claim.

2. Perpetual injunction restraining the defendants’ their servants and agents from further entering or interfering in the plaintiffs said land.

At the trial court, parties filed and exchanged their pleadings and amended pleadings with leave of that court. The case went to trial. The appellant did not counter claim, but he set up a defence of his ownership or title over the same land in dispute. Judgment was in favour of the present respondent for the sum of N10, 000.00 as damages for trespass and a perpetual injunction against the aforestated (8) eight defendants. Now it is only the appellant who was then the 1st defendant that has appealed against the said judgment to this Court. The appellant filed his Notice of Appeal containing 22 grounds of appeal from which he distilled and formulated 6 issues for determination as follows:

“1. Whether in view of the law, the evidence and the circumstances of the case, the learned trial Judge was right to have placed reliance on and to have attached weight to Exhibits A (with the attached Survey Plan), D, E, F and G and the evidence or the plaintiff and his witness (PW1 and PW2) Grounds 12, 15 and 16).

2. Whether the plaintiff established his root of title to the land in dispute. (Ground 9, 22, 17)
3. Whether the learned trial Judge was right in law and on the basis of the evidence to ascribe possession in favour of the plaintiff and against the 1st defendant in this case (Grounds 4, 5, 10).
4. Whether the learned trial Judge applied the relevant/applicable law, and applied the law properly to the facts of this case (Grounds 1 and 3).
5. Whether the evidence called in this case and the facts/circumstances of this case justify the findings, conclusions and the judgment that were entered by the learned trial Judge in this case (Ground 2, 6, 8, 13, 14, 18, 19, 20, and 21).”

As the respondent was duly served with the appellant’s brief of argument, he has filed respondents brief and has formulated three (3) issues distilled from the appellant’s 22 grounds of appeal. The three issues read:

“1. Whether the learned trial Judge was right in holding that the plaintiff/respondent proved a better title to the land in dispute than the defendants

2. Whether the plaintiff/respondent successfully proved his case for damages for trespass, which is based on exclusive possession of the land in dispute?
3. Whether the learned trial Judge was right in failing to apply the Abandoned Property (Custody and Management Edict, 1959 of Rivers State to this case?”

I have considered the party’s briefs of argument and their respective issues carefully. I am of the considered view that the appellant’s multiplicity of grounds of appeal and the six issues, are surplusage. The grounds are mere repetitions of errors in law. Issues 1, 3 to 22 are errors in law but issue No, 2 is that judgment is against the weight of evidence, while issues 5, 7 and 14 merely said that the learned trial Judge erred in law but have not referred to the particulars of the error. The repetitive error in law in the grounds of appeal from which the appellant has created six issues are to say the least in elegant and repetitive and a wasted time and energy. The respondent’s three issues are more responsive to and have combined appellant’s issues that are relevant for the determination of the appeal. This is how I will consider the appeal.

Issue 1 – Better title to the land in dispute:

The appellant has denied that the respondent had established his root of title to the land in dispute. In his issue No. 2 which is asking whether the plaintiff/respondent had established his root of title to the land in dispute appellant wasted so much time in the name of the original owner of the land in dispute complained that the respondent had named one Enoch Agbirigba Family. Appellant has argued that there is no evidence of any relationship/nexus between Enoch Agbirigba and Agbirigba Family and referred to numerous cases to show that evidence of the plaintiff must be in consonance with the pleading relied upon. But the fact is that in the instant appeal, the respondent had pleaded by his paragraph 4 and 7 of the reply to statement of defence that the land known as AKWADO land, originally belonged to the Agbirigba family of Oroworukwo Diobu – see page 28 of the record; and that the said family had earlier conveyed the said land including the land in dispute to John Nweke and Chukwuma Nwobu who also conveyed the land in dispute to the respondent. It is therefore well established that the respondent as per his pleadings and evidence on record, had established his root of title before he lawfully acquired the land in dispute. By referring to the name of Enoch Agbirigba is a clear acceptance that Enoch Agbirigba bore the name of original owner of the land in dispute and his surname of Agbirigba is what the family used in reference to the original ownership of the land. Appellant’s reliance on the cases of ABOYEJI v. MOMOH (1994) 4 SCNJ 302; UWEGBA v. A.G BENDEL STATE (1986) I NWLR (Pt.15) 303; OLAREWAJU v. BAMIGBOYE (1987) 3 NWLR (Pt. 60) 354 are not relevant to appellant’s argument.

Respondent’s evidence was not at variance with his pleadings. The learned trial Judge received Exhibit E, which shows the valid Deed of Conveyance registered as No. 57 at page 57 in Volume 103 of the Lands Registry at Enugu. At page 51 of the record, the respondent testified and there was no objection by the appellant. It reads thus:

“The names of my vendors on Exhibit A are John Nweke and Chukwuma Nwobu. From my findings, I discovered that my vendors bought the land from one Enoch Agbirigba, the original owner of the land. I applied for a certified true copy of the Deed of Conveyance. Counsel seeks to render it. No objection by the defence counsel… admitted and marked Exhibit E.”

Still At page 52 of the record, the respondent had forcibly stated on oath as follows again thus: